As President Joe Biden pushes ahead with his aggressive green-energy agenda on his way out of the White House, 25 state attorneys general are asking the U.S. Supreme Court to step in. They want the high court to prevent Biden’s Environmental Protection Agency (EPA) from imposing draconian carbon emission regulations that critics say would drive electricity prices higher and increase the danger of power blackouts.
“The rule in question threatens to significantly impact our state’s energy costs and reliability by mandating technologies that are currently impractical and costly for our power plants to implement,” said New Hampshire Attorney General John Formella, one of the participants.
At issue is the Environmental Protection Agency’s so-called “Clean Power Plan 2.0” carbon emissions rule finalized in May. It mandates existing coal plants and new baseload natural gas plants deploy carbon capture and storage (CCS) at a 90 percent capture rate by 2032.
There are currently no power plants in operation that meet this mandate.
As a result, critics warn, the availability of baseload electricity across the nation could plunge even as the demand for electricity due to green-energy mandates soars.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled last month that the EPA could move forward with its new regulations, rejecting the argument that the case invoked a “major questions” issue. Under the “major questions” doctrine, significant public policy changes — such as bringing about the end of the coal industry, for example — can’t be made by regulators via policy changes. Such decisions require an act of Congress.
America’s Power, which represents the nation’s coal industry, and the National Mining Association (NMA), also filed a request for a stay with the Supreme Court. It argued the lower court simply ignored the high court’s previous rulings.
“It is rare for a federal agency to attempt to evade this Court so brazenly. The EPA is now attempting to accomplish through a clumsy sleight-of-hand what this Court has already held it cannot do,” they wrote.
The risk to America’s ratepayers — who have already seen average retail electricity rates rise 20 percent since 2020 — is the potential impact on natural gas power generation. Natural gas generates about 43 percent of U.S. electricity.
But ending coal generation, which currently accounts for 13 percent of total power generation nationwide, could also hurt consumers by pulling supply out of the national market, driving up the costs of electricity across the grid. And with Goldman Sachs Research estimating demand for electricity to power data centers will grow 160 percent by 2030, price pressure is likely to continue.
Michelle Bloodworth, president and CEO of America’s Power, points out many legal challenges remain, and allowing Biden to force this new rule on his way out of office is unfair to energy producers and would hurt ratepayers.
“The Clean Power Plan 2.0 is designed to force the closure of coal power plants even though they provide dependable electricity to ratepayers in 40 states. We simply cannot eliminate coal and expect to maintain a reliable, affordable, and secure supply of electricity,” Bloodworth said.
And then there are the legal challenges to the Biden policy.
Critics like the National Taxpayers Union say it’s a revision of an Obama-era order the Supreme Court already struck down, ruling it regulatory overreach.
“Given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims,” the Supreme Court ruled.
The attorneys general agree, calling Biden’s plan “deja vu all over again.”
“Once more, EPA looks to Section 111 to justify imposing major, jarring shifts in the nation’s power market. The effort is perhaps subtler than EPA’s last try; it hasn’t given the Rule a special name or coined any new terms. But it’s no less problematic, setting impossible-to-meet standards for regulated facilities, stripping away the States’ discretion to patch up the damage, and ultimately pushing regulated sources into early retirements,” they wrote.
Energy experts say the Biden administration is attempting to impose carbon emission levels from a world that simply does not exist.
“We are disappointed that the [EPA] did not address the concerns we raised about carbon capture and storage,” said Edison Electric Institute president and CEO Dan Brouillette. He said he does not believe the technology will be ready for full-scale use by 2032 when the regulations are set to go into effect.
But NMA president Rich Nolan believes the Supreme Court will intervene.
“We are headed for a crisis of the EPA’s making. The Supreme Court recognized the irreparable harms associated with the original Clean Power Plan and appropriately stayed that rule. We are confident that the Supreme Court will do the same here and ultimately reject EPA’s generation-shifting mandates.”
