EPA’s efforts to undo Biden-era climate rules for power plants could get a major overhaul before they clear White House review, according to some insiders watching the process.
The White House Office of Management and Budget is currently reviewing EPA’s rollback of Biden-era standards that would have required coal- and some new gas-fired power plants to capture and store most of their carbon emissions. EPA’s proposal last year would have both scrapped both the Biden rules and the underlying Clean Air Act regulatory authority they relied upon.
But lawyers tracking the action — many of whom were granted anonymity because they’re either advising or suing EPA — said that when it is released they expect to see that it has undergone a makeover.
In the months since EPA released last year’s proposal, experts have come to believe that EPA will repeal only the Biden-era rules and issue a supplemental proposal on broader questions of regulatory authority. That supplemental would do a better job of incorporating the agency’s recent repeal of the “endangerment finding,” the keystone climate science determination that underpins all Clean Air Act climate rules.
“It’s just taking it in two steps, so it takes longer,” said Carrie Jenks, executive director of Harvard University’s Environmental & Energy Law Program. “I think industry was asking to make sure that they at least got the repeal of the Biden administration’s regulation.”
Most utility industry groups who filed comments on the draft rule last summer asked EPA to base its decision on a critique of the benchmark technologies — carbon capture and storage and co-firing gas at coal plants — that former President Joe Biden’s administration used to set the 2024 standards.
Opponents of the Biden administration’s climate rules for fossil fuel power plants said the technology didn’t meet statutory requirements, including the need for adequate demonstration and a prohibition that they argue the Supreme Court placed on standards that force fuel switching.
That narrower rule appears to be what the White House Office of Management and Budget is reviewing now.
It has undergone a name change since last June, when OMB’s regulatory portal listed the proposal as “Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel Fired Electric Generating Units.” The final rule submitted for review on May 12 is called, more simply, “Carbon Pollution Standards Repeal.”
EPA spokesperson Carolyn Holran said the final rule now at OMB repeals “the Biden-era 2024 Carbon Pollution Standards.”
“The final action is expected to remove regulatory barriers and unleash American energy and natural resources, driving down the costs of transportation, heating, utilities, farming, and manufacturing for Americans and businesses across the nation,” she added.
The regulatory dashboard lists the rule as being in the final stage. That might suggest it doesn’t include a new supplemental proposal — at least, not yet.
Carbon rules still on the books
The part of last year’s draft rule that EPA seems ready to soon finalize was called the “alternative proposal.” The agency’s “primary proposal” in last year’s draft was that the Clean Air Act section EPA has used to regulate power sector climate pollution requires it to demonstrate that greenhouse gases from fossil-fuel-fired units “contribute significantly” to public endangerment — something EPA last year argued they do not do, because U.S. utilities are responsible for only a sliver of global emissions.
The “alternative proposal” based on technology is narrower, and it wouldn’t tie the hands of a future administration seeking to regulate the power sector for carbon.
That would come later, possibly in a supplemental proposal released in the coming months as part of the same package.
But the technology-based alternative alone also wouldn’t clear the deck of every power plant carbon standard currently in place. In fact, several sets of greenhouse standards finalized under the Obama and Biden administration would remain on the books after that rule became final — at least until EPA issues a more complete repeal targeting its Clean Air Act regulatory authority.
One of the survivors would be a 2015 New Source Performance Standard, established alongside the Clean Power Plan for existing power plants. That rule requires new coal-fired units to capture and store 40 percent of their carbon dioxide emissions. The original rule also set standards for new gas-fired units, but those were updated in 2024.
The coal standards have outlived their better-known cousin, the Clean Power Plan, by more than a decade. Yet, while the U.S. power sector has come close to achieving the CPP’s 32 percent emissions reduction goal compared with 2005 levels — years before the 2030 target — no new coal-fired power plants with CCS have been built.
But the first Trump administration left the rule on the books largely because no new coal-fired power plants without CCS were planned, either, and it had no effect.
The repeal rule’s ”alternative” would also leave standing — at least for now — a set of Biden-era standards for new and reconstructed gas-fired power plants that run less than 40 percent of the time.
“Low load” or peaker units that run at less than 20 percent capacity to supply power at times of peak demand are required under the 2024 rule to meet standards based on burning cleaner fuels. Intermediate load units that run between 20 and 40 percent of the time must meet a tighter efficiency-based standard. Last year’s draft recission rule also states that the “alternative proposal” does not reopen the “Phase 1” Biden-era standard “for new and reconstructed base load fossil fuel-fired stationary combustion turbines.”
That’s the standard based on “highly efficient generation” that new baseload gas plants that run at least 40 percent of the time must achieve until 2032. That was the Biden rule’s deadline for them to begin capturing and storing 90 percent of their carbon emissions — a requirement that EPA’s “alternative” would repeal.
Jeff Holmstead, an industry attorney who served as EPA air chief under former President George W. Bush, noted that comments were filed to the proposal last year urging EPA to “make changes to the Phase 1 standards, but they didn’t propose that.”
“So, I assume, if that’s what they’re doing, then it would leave in place some of the [greenhouse gas] standards for now,” he said.
EPA did no new modeling to support its proposal last year to repeal the 2024 standards, which some attorneys said could be a legal vulnerability if it finalizes solely on the basis of technological feasibility. If the agency rolls out substantial new analysis in the final rule that the public hasn’t been given a chance to weigh in on, environmentalists would likely petition the agency for reconsideration — as they did when EPA introduced new analysis in its final endangerment finding repeal in February.
And EPA might be in a position of arguing in court that CCS doesn’t pass muster as the basis for power plant carbon standards when it in fact still has a CCS-based standard for new coal-fired power on the books. But lawyers said that may not matter, depending on when the agency finalizes the second piece of the repeal, how quickly challenges move through the U.S. Court of Appeals for the D.C. Circuit, and the attitudes of the judges there.
But Andres Restrepo, a senior attorney for the Sierra Club, said that finalizing the two parts of the repeal proposal separately wouldn’t substantially weaken EPA’s legal position, which he said was already weak.
“This was essentially decided in Massachusetts v. EPA,” said Restrepo, referring to a 2007 Supreme Court decision that found that EPA was obliged to consider regulating greenhouse gas emissions under the Clean Air Act. “There is really no legal justification now to claim that greenhouse gas pollution doesn’t endanger health and welfare, whether it be in the context of power plants or the context of vehicles.”
“Under any lawful and rational definition, power plant CO2 emissions are significant contributors to air pollution that endangers health and welfare,” he added. “Our judgment of it is that it’s not lawful, and that we will certainly oppose it.”
