Supreme Court Allows EPA Power Plant Pollution Curbs for Now (1)

The US Supreme Court let the Environmental Protection Agency move ahead with its stringent new emissions limits for power plants, rebuffing businesses and Republican-run states that complained the rule will impose exorbitant compliance costs.

The high court order is a major boost for Biden administration efforts to tackle climate change through new regulations on an industry that accounts for about a quarter of the country’s greenhouse gas emissions.

Opponents, including trade groups and companies in the power and mining industries, were seeking to halt the rule while a legal challenge goes forward at a federal appeals court and, in all likelihood, the Supreme Court. A delay might have pushed the deadlines back by two years.

But the court was persuaded by President Joe Biden’s administration, which argued that delaying the rule would “cause irreparable harm to the government and the public by permitting irretrievable emissions of carbon dioxide in the meantime.”

Justice Clarence Thomas dissented without explanation, while Justice Samuel Alito, didn’t take part in the case. Although Alito offered no explanation, his most recent financial disclosure report indicates he owns shares of OGE Energy Corp., which is involved in the case.

Two other conservatives, Justices Brett Kavanaugh and Neil Gorsuch, said in a one-paragraph statement that the challengers “have shown a strong likelihood of success on the merits as to at least some of their challenges.” But the two said the opponents weren’t likely to experience “irreparable harm” because they won’t have to start compliance work until next June.

The other five justices made no comment, and the court as a whole gave no explanation, as is often the case with emergency orders. The court took almost two months to act on the emergency requests.

Environmentalists celebrated the decision. Meredith Hankins, a senior attorney at the Natural Resources Defense Council, called it “a victory for common sense.”

“Power producers don’t need immediate relief from modest standards that kick in eight years from now, and states have plenty of time to begin their planning process,” Hankins said. “The high court made the right call.”

‘Irreversible choices’

The Edison Electric Institute, which represents investor-owned utilities, said it was disappointed in the decision.

“While EEI’s member electric companies are investing in carbon capture and storage and are excited by its potential, the current reality is that this technology has yet to be adequately demonstrated as required by the Clean Air Act,” Alex Bond, the trade group’s executive director of clean energy and environment, said in an emailed statement.

In court papers, a group led by Edison said companies would have to “spend many millions of dollars and make irreversible choices among compliance options now” unless the rule was blocked.

The EPA called that an exaggeration, saying compliance costs will be minimal in the early going.

States led by West Virginia, the second-largest US coal producer, told the justices that the EPA was making a mistake by attacking fossil-fuel generation. “Fossil fuels are essential to safely transition the grid to a higher percentage of renewables,” the 25-state group argued.

The Supreme Court’s conservative majority had previously thwarted efforts by Democratic administrations to shift the nation’s electricity sector away from fossil fuels and toward renewables. The court blocked then-President Barack Obama’s Clean Power Plan in 2016 and ruled in 2022 that the plan exceeded the EPA’s authority.

The latest regulation was a response to the court’s 2022 ruling, with the EPA saying it is now relying on its traditional regulatory approach of requiring companies to adopt the best available technologies.

As issued in April, the regulation would force the nation’s existing coal-burning plants to capture nearly all of their carbon dioxide emissions by 2039 and would compel similar pollution cuts for many of the new gas-fired plants built as replacements.

The rule could hasten plant closures at a time when artificial intelligence, data centers and vehicle electrification are driving up demand – a dynamic that critics say would threaten electric reliability.

A federal appeals court in Washington had refused to halt the regulation while a panel of judges considers the industry and state challenges. A ruling is unlikely until next year at that court.

The Supreme Court on Oct. 4 refused to block two other new EPA pollution regulations, one cracking down on planet-warming methane emissions from oil wells and infrastructure and another limiting mercury and other toxic air pollution from coal power plants.

The latest cases are West Virginia v. EPA, 24A95; National Rural Electric Cooperative v. EPA, 24A96; National Mining Association and America’s Power v. EPA, 24A97; Nacco Natural Resources v. EPA, 24A98; Midwest Ozone Group v. EPA, 24A105; Electric Generators for a Sensible Transition v. EPA, 24A106; Edison Electric Institute v. EPA, 24A116; and Ohio v. EPA, 24A117.

(Updates with breakdown of court starting in fifth paragraph.)

--With assistance from Jennifer A. Dlouhy.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Greg Stohr

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