Efforts Underway To Challenge EPA Power Plant Rule

Efforts by state attorneys general and Republicans in Congress to block a new proposed rule that could force the closing of current coal-fired power plants and stop the building of new natural gas-fired plants are underway.

U.S. Sen. Shelley Moore Capito, R-W.Va., questioned federal Environmental Protection Agency Administrator Michael Regan about the proposed rule during a Wednesday meeting of the Senate Environment and Public Works (EPW) Committee where Capito is the ranking GOP committee member.

The EPA released a new regulation last month that would require coal-fired and gas-fired power plants to reduce their greenhouse gas emissions by 90% by 2039, moving up a previous requirement by one year.

“I expressed my very deep concern about the Clean Power Plan 2.0 that this administration has put out,” Capito said Thursday during her weekly virtual briefing with West Virginia press.

“It’s way over-arching regulations,” Capito continued. “It will make power more expensive; harm the jobs in and around the energy that we see in our state and across the country; and it’s just a hat tip to the environmentalists in this country that are pushing the electrifying of our economy, but they don’t do it in a way that makes sense.”

Plants could also utilize underground carbon capture and sequestration to meet the 90% requirement. But Capito said the standards the administration of President Joe Biden are putting in place for carbon capture are not reachable with current technology.

“The levels of which they want to capture the carbon, which is 90%, are unachievable. They haven’t been achieved yet, so they set unrealistic targets so that your only option then is to shutter the plant. It will also make it difficult to build a brand-new natural gas-fired power plant.”

According to the U.S. Energy Information Administration, 60% of U.S. electrical generation in 2023 came for fossil fuel sources, such as coal, natural gas, and oil. Of that, coal made up 16.2% and natural gas made up 43.1%.

According to the state Public Energy Authority, West Virginia has nine coal-fired power plants accounting for 88.9% of the electricity generated in the state and five natural gas-fired plants accounting for 4.9% of the electricity generated in West Virginia.

Both Capito and U.S. Sen. Joe Manchin, D-W.Va., have said they would sponsor and support a Congressional Review Act (CRA) resolution of disapproval for the new EPA rule. The CRA allows Congress to overturn rules created by federal agencies, though a president can veto a CRA resolution.

“We will be leading the CRA … to take the Clean Power Plan down and to pass that through both the Senate and the (U.S. House of Representatives),” Capito said. “We’re going to go to work on that. I think it will probably pass. The unfortunate thing is I don’t think the President will sign it.”

West Virginia Attorney General Patrick Morrisey announced Thursday that West Virginia and Indiana were leading a 25-state coalition to file a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit seeking to block the new EPA rule.

“The EPA continues to not fully understand the direction from the Supreme Court — unelected bureaucrats continue their pursuit to legislate rather than rely on elected members of Congress for guidance,” Morrisey said in a statement Thursday. “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.”

The Attorney General’s Office secured two victories against the EPA before the U.S. Supreme Court in 2016 and 2022 over the Obama-era Clean Power Plan and in defense of the Trump-era Affordable Clean Energy Rule. Morrisey said he will be seeking a stay to prevent implementation of the new rule while the court case is pending.

“This rule strips the states of important discretion while using technologies that don’t work in the real world – this administration packaged this rule with several other rules aimed at destroying traditional energy providers,” Morrisey said. “We are confident we will once again prevail in court against this rogue agency.”

“The Obama administration Clean Power Plan was deemed illegal by the Supreme Court, and I believe that will be the same fate of this plan,” Capito said.