Over two dozen states sue to overturn new EPA power plant emissions rule

A recently finalized federal rule requiring certain fossil fuel-fired generators to slash their carbon emissions is coming under legal fire, with dozens of states filing suit to block the measure and a trade group for rural electric cooperatives also launching its own legal challenge.

On May 9 Republican attorneys general from 25 states, led by West Virginia's Patrick Morrisey, filed a petition with the US Court of Appeals for the DC Circuit asking the court to invalidate the Environmental Protection Agency's power plant rule. That rule, issued April 25, requires all existing coal plants planning to operate past 2039 to capture 90% of their CO2 emissions, which effectively requires them to install carbon capture technology. In addition, new natural gas combined-cycle plants will face the same limit.

The move comes as part of a broad effort by President Joe Biden's administration to wean the nation off coal and meet a goal of fully decarbonizing the US power sector by 2035.

In their petition, the attorneys general said the new rule "exceeds the agency's statutory authority and otherwise is arbitrary, capricious, an abuse of discretion, and not in accordance with law."

Other states joining West Virginia in the effort were Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.

In a statement announcing the lawsuit, Morrisey said the final rule disregarded a 2022 US Supreme Court decision in another case that he filed, West Virginia v. EPA, over the EPA's 2015 Clean Power Plan regulation. In that opinion, the high court found that the 2015 rule, in seeking to push power generators to shift from coal to energy sources with lower CO2 emissions, exceeded the EPA's authority under the Clean Air Act.

"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. "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."

Those arguments were echoed in a separate challenge filed the same day in the same court by the National Rural Electric Cooperative Association, the trade group for almost 900 local power cooperatives around the country.

In a statement, NRECA CEO Jim Matheson called the new power plant rule "unlawful, unreasonable, and unachievable" and said it posed "an immediate threat" to the nation's power grid. "Under the rule, EPA illegally attempts to transform the US energy economy by forcing a shift in electricity generation to the agency's favored sources," he added.

The EPA declined to comment, citing pending litigation.

Fossil fuel-fired power plants accounted for 25% of the nation's total CO2 emissions in 2022, making them the largest stationary source of such emissions. The EPA has projected that the new rule would provide up to $370 billion in climate and public health benefits over the coming two decades.

Under the power plant rule, coal plants slated for retirement between 2032 and 2039 would face less-stringent CO2 limits, while those plants scheduled for shutdown before 2032 are wholly exempt from the restrictions.

America's Power, a trade group for coal generators, has come out strongly against the EPA rule, seeing it as an effort by the Biden administration to drive coal plants out of business. In a May 9 statement, the group's president and CEO, Michelle Bloodworth, celebrated the states' effort to overturn the rule.

"The new rule is an extreme and unlawful overreach that will force the premature closure of dependable coal-fired power plants that are needed to satisfy our exploding demand for electricity and to maintain the reliability of our electric grid," she said. "Electricity consumers should be thankful that so many states have taken on the responsibility to challenge this rule, which has the same flaws as the original Clean Power Plan."

Bloodworth added that she was "optimistic" the rule would be voided by the court.