25 states file emergency appeal to U.S. Supreme Court to halt EPA’s carbon rule

Colstrip Power Plant (Darrell Ehrlick/Daily Montanan)

Attorneys general in nearly 25 states, including Nebraska’s Mike Hilgers, have sent an emergency appeal to the U.S. Supreme Court asking it to immediately halt a Biden administration rule that they say threatens to shutter the country’s remaining fleet of coal-fired power plants.

The emergency appeal to stay the Environmental Protection Agency’s plans to require strict greenhouse gas emissions standards is pending before Supreme Court Chief Justice John Roberts because the states say that the D.C. Circuit Court of Appeals is sitting on a number of lawsuits without a decision and that more time is needed before implementing a decision about technologies such as carbon capture and storage.

Roberts, having appeal jurisdiction over the D.C. Circuit on what is commonly referred to as the “shadow docket,” could deny the request, send it along to the full court or issue a brief temporary stay while the matter is further briefed on an expedited schedule.

The appeal, led by Indiana Attorney General Todd Rokita and West Virginia Attorney General Patrick Morrisey, said that the EPA has overstepped its authority, taking away Congress’ power, as it mandates greenhouse gas regulations that are impossible to meet because the technology either currently doesn’t exist or would be so cost prohibitive that it would make using coal impossible.

Investment and permitting decisions

The appeal to the nation’s highest court also says that because of future pollution targets, energy companies need to make investment and permitting decisions in advance and that the EPA cannot meet those timelines itself, risking millions of sunken or lost costs for public utilities that would be passed along to consumers.

While not mentioning Montana’s Colstrip Units 3 and 4, the issues strike directly at the heart of the battle to keep the aging coal-fired plant in southern Montana open. The lawsuit said that the only way to keep such plants open is through carbon capture and storage, but that technology has never been proven on an industrial scale, and furthermore the limited tests require heavy subsidies.

Attorneys argue that if the Biden administration’s rule is allowed to continue, it will mean that hundreds of megawatts will be forced offline, leading to power shortages during critical weather during the summer and winter.

“Among other things, the rule imposes inadequately demonstrated technologies on unworkable timeframes, effectively squeezing plants into retirement,” the appeal said. “Relatedly, it causes serious immediate harms by either pushing plants into binding commitments for retirement or pressing them to start spending large sums to hit compliance dates.”

The rule would force 90% of carbon dioxide from the plants to be captured and stored by 2032 and 40% of the plants to establish co-firing with natural gas by 2030.

“(The rules) are really a backdoor avenue to forcing coal plants out of existence — a major question that no clear congressional authority permits. The rule cannot stand,” the legal brief said.

Carbon capture and storage

Many states have invested in the promise of carbon capture and storage as one way to mitigate the greenhouse gases produced by burning coal. The idea is to capture the flue gas and then pipe it either to underground storage or sell it, thereby reducing the amount of greenhouse gases released into the environment.

However, the states argue that even though the EPA has adopted standards and rules that embrace the carbon capture and storage technology, the technology has not been proven successful or economically feasible.

“The EPA recites a list of CCS projects and operations, saying there are ‘at least 15 operating CCS projects in the U.S., and another 121 that are under construction or in advanced stages of development,’ but this recitation is quantity over quality,” the brief said. “Nearly all named CCS operations are from the industrial rather than the energy sector — an important difference because the energy sector has unique demands like reliability. These facilities are all a fraction of the size of power-generating units; none of them are close to scale.”

Furthermore, the states warn that new power plants that have carbon capture systems will more than double the construction costs as well as increase operational costs by 35%.

“This expense could double energy prices,” the states warn. “Installing CCS reduces plants’ sellable energy by up to 36% — instantly slashing plants’ ongoing profitability.”

The emergency appeal also said that the carbon capture technology will require plant owners to buy more fuel, increasing the cost to run a plant, and that the start-up times will be affected. They claim the new units will have a hard time operating at low loads.

“The National Center for Carbon Capture estimates the first CCS demonstration projects won’t go online until 2030 to 2032,” the legal filing said.

Carbon-capture technology would also call for thousands of miles of pipeline to transport the carbon for storage or usage. Citing a survey by Princeton, it estimates that 66,000 miles of pipeline are needed, while the EPA said it estimates 5,000 miles. Using the more conservative EPA estimates, the states point out that power companies would have to invest more than $12.5 billion for the pipelines.

Finally, the states question the market for carbon dioxide generated from the power plants. For example, they note that one of the largest uses for captured carbon dioxide is in enhanced oil recovery, but many states and counties have restrictions on that. According to the briefs, 95% of the captured carbon market is for enhanced oil recovery, leading the states to question if the market for the product even exists.

“The EPA has no idea how strong that demand is,” the lawsuit said. “It seems imprudent to suppose that many plants will be able to sell carbon. But the sequestration is not much better.”

The appeal said that even the EPA has said that 19 states have no underground storage capacity or very little.

Time is running out

Though many of the goals and targets have deadlines reaching years into the future, the states’ attorneys general say that the permitting, planning and investment needed to comply with the EPA’s rules will take years, and cost states millions (the EPA often delegates regulation and enforcement of federal rules to the states).

In the lawsuit, they say that complying with the rule and enforcing it will eat up staff time on a task that is scientifically as well as economically impossible. Furthermore, the states will have no ability to recover the costs, and any costs public utilities will sink into the mandate could be passed along to consumers.

“It forces producers to decide between launching a Hail Mary bid to squeak by under a painful new regime or just bowing out of the game entirely,” the attorneys general conclude.

The EPA did not comment prior to publication of this story.

Editor’s note: This story has been revised to correct the number of states’ attorneys general who joined in the appeal.

This article first appeared in the Daily Montanan, a sister site of the Nebraska Examiner in the States Newsroom network.

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