Red States and Coal Groups Fight Biden Power Plant Rule (1)

More than two dozen states joined rural power companies and coal advocates Thursday in challenging a new Biden administration rule that forces US power plants to stifle planet-warming pollution, calling it an unlawful bid to remake the nation’s electricity system.

The lawsuits, filed on the first day possible in a federal appeals court in Washington, DC, set up a fight over the future of greenhouse gas reductions at the nation’s power plants just as data centers, artificial intelligence and industrial manufacturing are boosting electricity demand. They also present a test for a core piece of President Joe Biden’s agenda to fight climate change.

West Virginia, the second-largest US coal producer, is leading a 25-state coalition in one of the challenges, with the state’s attorney general, Patrick Morrisey, looking to reprise successful battles against earlier power plant regulations.

Morrisey said the Biden administration defied a 2022 Supreme Court ruling that curtailed the Environmental Protection Agency’s ability to impose wide-ranging greenhouse gas mandates that seek to shift power generation away from fossil fuels.

“This Green New Deal agenda the Biden administration continues to force onto the people is setting up the plants to fail and therefore shutter, altering the nation’s already stretched grid,” Morrisey said in a statement.

The new EPA rule will force the nation’s current fleet of coal plants to capture nearly all of their carbon dioxide emissions — or close down — by 2039. And it will compel similar pollution cuts for many of the new gas-fired plants built to replace them. The requirements are built on a determination that the best system of emission reduction for many power plants is carbon capture technology that’s been available for decades but has barely been in commercial use in the electric sector today.

Other challenges were filed by the National Rural Electric Cooperative Association, the National Mining Association and America’s Power, a group advocating for US coal interests.

The electric co-op CEO, Jim Matheson, said the rule represents an illegal attempt “to transform the US energy economy by forcing a shift in electricity generation to the agency’s favored sources.”

Other lawsuits are expected. The interim chief executive officer of American Electric Power Co. last week said the company would “do what we have to do to defend our grid and our customers.”

The Edison Electric Institute, which represents some of the nation’s largest utilities, has criticized the rule’s reliance on carbon capture technology, saying it’s not ready for wide-scale deployment and the infrastructure needed to support it can’t be permitted, financed and constructed by the time compliance requirements kick in next decade.

An EPA spokesman declined to comment.

The Natural Resources Defense Council criticized the legal attacks, saying the EPA’s rule embraces “technology that has been demonstrated to work” cleaning up power plant pollution.

“Instead of fighting a losing legal battle, power plant owners and states should be locking up their lawyers and turning loose their engineers,” said David Doniger, a senior attorney at the NRDC.

Repeating a strategy used to derail former President Barack Obama’s Clean Power Plan in 2016, West Virginia will be asking the court to swiftly stay the regulation, preventing it from going into force while litigation proceeds.

(Updates with new legal filings and challengers, from first paragraph)

--With assistance from Josh Saul.

To contact the reporter on this story:
Jennifer A. Dlouhy in Washington at jdlouhy1@bloomberg.net

To contact the editors responsible for this story:
Simon Casey at scasey4@bloomberg.net

Jeff Sutherland, Joe Ryan

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