EPA's Illegal Power Play

The agency's ambitious gambit to reorganize America's electricity will almost certainly be struck down.

Mario Loyola is the author via RealClear Wire


The U.S. Supreme Court ruling in

West Virginia v. EPA

Last year, the Environmental Protection Agency suffered a historic loss.

The Court ruled that President Obama's signature climate law, the Clean Power Plan of 2015, was unconstitutional. It also severely limited the EPA's ability to regulate carbon emission under the Clean Air Act.

The agency was left with two options.

It could accept its flaws and concentrate on drafting regulations that have a good chance of passing federal court review. Or it could bet everything on one last desperate attempt to decarbonize America’s power sector

Go for the win, in line with President Biden’s commitment to zero net carbon emissions.

On May 23, 2023 EPA selected the latter.

Carbon emission standards

For power plants that are far more ambitious than the ones struck down by Supreme Court last summer. The proposed emission standards under Section 111 are similar to other EPA climate regulations. They do not aim to reduce emissions of standard power plants but to force a fast transition from reliable, affordable and dispatchable sources of energy--natural gases and coal-to intermittent renewables or new types of power plants which don't yet exist. The proposed rule, along with EPA's mandates for electric vehicles, would be a disaster for the American electrical grid and society at large, endangering competitiveness, energy security, and economic stability while producing no measurable benefit to climate change.

The proposal is so prone to legal flaws that it will be a miracle for the rule to survive a federal court review.

According to the proposed rule that President Biden hopes will be finalized by the end of next summer, existing coal and large natural gas plants, whether new or modified, would have to eliminate all carbon emissions by the year 2038. Section 111 (a) - New Source Performance Standards (NSPS) - would require large combined-cycle natural-gas plants that currently provide roughly 30% of America's electricity to achieve near-zero carbon emissions. This could be achieved by implementing CCS to capture 90% by 2035 or by switching to 98% green hydrogen co-firing. Section 111(d), which outlines emission guidelines, also requires existing coal plants that currently provide more than 20 percent of America's power to eliminate carbon emissions through CCS implementation by 2035.

EPA has declined to issue NSPSs for coal plants, stating that,

There are no plans for new coal-fired power plants to be built in the U.S.

The company refused to issue emission guidelines for natural gas plants that are already in operation, citing concerns about feasibility. It was even more intriguing to see that when EPA sent its proposed rule for regulatory review to the White House under E.O. The proposed rule contained no emission guidelines for existing plants and would therefore not have applied to any coal plants. The White House


The proposal was sent back to EPA, with instructions to include a Section 111 (d) rule applicable to existing coal plants. This indicates that EPA is not confident about the Section 111 (d) rule's ability to survive a court review.

The same section 111 of CAA is at issue.

West Virginia v. EPA

EPA is authorized to set a limit on the amount of emissions that can be reduced by applying the

Best system for emission reduction

What (

Taking into consideration the cost

Achieving such a reduction

Non-air quality impacts on health, the environment and energy requirements

The Administrator has determined that the alleged violation(s) has occurred

риодно demonstrates


The Section 111 is a very high standard, especially in the aftermath of 9/11.

West Virginia v. EPA

The proposed rule is woefully inadequate. The proposed rule has at least three significant legal weaknesses, and any of them would be enough for a judge to throw it out.

First, neither green hydrogen nor CCS are "adequately proven" within the meanings of Section 111. Second, EPA ignores the costs and impacts it must take into consideration when setting emission standards under Section 111. Third, just like the 'best method of emission reduction' that was struck down in

West Virginia v. EPA

The new rule would require massive regulatory actions and infrastructure investments outside of the fence lines of the regulated facility, thus raising the doctrine of the "major question"

The following are some examples of how to avoid being a danger

The agency's interpretation is the law.

The Mandated Technologies have not been 'Adequately Presented'

Section 111 requires that a technology must be "adequately proven" to qualify as the "best system of emissions reduction". The D.C. The D.C. In

Portland Cement v. Ruckelshaus

In D.C. Circuit (1973), the D.C. Circuit stated that in order to determine whether a technology has been adequately demonstrated, "[t]he Administrator can make a projection using existing technology. However, this projection must be reasonable and not based on an 'ask the crystal ball' question."

The D.C. The D.C.

BSER must be built on technologies that have been demonstrated for the size and purpose at which they will be used to meet the new standards by the regulated entities.

Section 111 of the CAA is not intended to force industries to develop new technology. The D.C. Circuit ruled that a standard could not both demand technology that has been adequately demonstrated and be technology-forcing. Circuit in

NRDC v. Thomas


Contrary to the clear pronouncements made by the D.C. EPA has treated Section 111 throughout the proposed rule as if it was a provision that mandated technology. EPA, for example, claims that CCS was 'adequately proven' in natural gas plants based upon small-scale coal plant demonstrations. The coal demonstrations, however, only involve small slipstreams of carbon captured from a very small percentage (of the total emissions) to be used in the food industry. The coal demonstrations also do not include the complex combined-cycle configurations that are used in large natural gas plants, where the exhaust from a primary combustion cycle heats the steam generator for the second cycle.

The proposed rule is spread over several hundred pages.

PA gives two examples of demonstrations in natural gas plants

One plant in Bellingham, Massachusetts captured only 10% of the slipstream, and was closed by 2005 due to its uneconomical nature. It was a decade prior to the Clean Power Plan of Obama's era, when EPA rejected CCS for being too expensive and inadequately proven. One project, at Peterhead in Scotland, is currently being planned and may never be built. Both cannot be used to demonstrate a BSER.

EPA's CCS directive would also require a massive investment and regulatory change by government authorities and developers who are not related to the entities that fall under Section 111. The EPA's CCS mandate would require a massive build-out of carbon transport and storage infrastructure, which has not been adequately demonstrated. It would also require sweeping investments and regulatory changes by developers and government authorities unrelated to the entities subject to regulation under Section 111 of CAA.

West Virginia v. EPA

This massive infrastructure buildout would exceed the capabilities of EPA-regulated organizations to implement.

Even further away from being demonstrated, co-firing using low-carbon hydrogen has yet to be adequately proven. Almost all of the hydrogen produced today is carbon-intensive. Electrolysis using renewable or nuclear power generates only small quantities. EPA does not bother to estimate cost, feasibility or time to build the huge amount of new renewable power and nuclear capacity needed to make low-GHG hydrogen a viable option for power plants.

Since hydrogen is much hotter than natural gas, current turbines are not suitable for the majority of hydrogen feedstock. EPA acknowledges that the redesign of turbines for combined-cycle gas plants will be necessary to make them hydrogen-capable. This is another way that EPA's BSER does not meet the requirement of an adequate demonstration. Even the intermediate standard, 30% co-firing has not been proven at utility scale, despite being tested in small industrial facilities.

Finaly, EPA states explicitly that its hydrogen BSER is a technology-forcing measure, which, based on the D.C. Circuit precedent, does not meet the definition of 'adequately demonstrated. By definition, a 'demonstration' is not "adequate" according to the D.C. Circuit. EPA acknowledges that there are infrastructure obstacles, inadequate storage, and insufficient delivery of hydrogen beyond the fence of regulated facilities. This undermines any claim that a demonstration is adequate, and it also shows how such investments are beyond the control of regulatory entities.

The same D.C. The same D.C. EPA refers to "the D.C. The D.C. Circuit has ruled that EPA can determine that a system for emission reduction is adequately demonstrated if it reasonably projects to have the system available at a certain future date. The agency does not provide any evidence to support this proposition. A close reading of

Sierra Club v. Costle

The D.C. Circuit's view is different, as the 1981 case shows. Circuit's view.

You can also find out more about the following:

Sierra Club v. Costle

Circuit indicated that dry scrubbing, which was at the time an emerging clean coal technology, had not been adequately demonstrated because as an "emerging technology", there were 'crucial issues such as... Circuit stated that dry scrubbing was not demonstrated adequately because it was a 'new technology' at the time.

'The demonstration of commercial systems may limit the acceptance of this technology.

The court stated that there was a'major degree of uncertainty' with this technology 'in absence of experience in large-scale installations' and that EPA couldn't extrapolate from smaller, pilot-scale plants. EPA admits, just as it did in the previous case, that CCS and Green Hydrogen are emerging technologies. The list of demonstrations it has done at different scales and sources and in different industries is not very useful, as these are not the industries, scales and sources that EPA now wants to regulate. The EPA's examples demonstrate that there is still considerable uncertainty about the feasibility and acceptability, in general, of its proposed technologies.

The per curiam case is one of the few cases that EPA has discussed in detail.

Lignite Energy Council v. EPA

According to EPA the court held that technology can be 'adequately shown' through a reasonable extrapolation' of performance in other industry. EPA fails to mention the D.C. Circuit's reasoning for allowing such extrapolation in that case. The D.C. Circuit in that case allowed for such extrapolation, because the pollution sources of the other industry had similar design, size, and emission profiles to those that EPA sought to regulate. According to EPA, this is not the situation here.

The Section 111 legal standard of a'sufficiently demonstrated' BSER is not met by either CCS or 'green' co-firing with hydrogen.

EPA has ignored the costs of the proposed rule, as well its health, environment, and energy impacts

When determining whether a technology has been "adequately proven" under Section 111 of the EPA Act, the agency must consider the cost of the regulation, as well the impact on health, the environment, and the energy. The courts have interpreted it as requiring reasonable costs. This is a problem because EPA cannot point to any measurable benefits for the environment that would be achieved by complying with its proposed rule. EPA's greenhouse gas regulations are based on the 2010 Endangerment Finding which is flawed in its own right, as William Happer & Richard Lindzen point out in their July 2023 report.

comment letter

To the proposed rule. The sources that are subject to this rule have not demonstrated that they contribute significantly to air pollution which is harmful to human health. In addition, the findings mention the 2021 Technical Assistance Document on the Social Cost of Carbon in relation to a regulatory impact assessment that has no connection to CAA requirements. In such circumstances, it is important to determine whether significant costs are reasonable.

There are also other problems with EPA’s estimates of costs and impacts. Its estimate of costs, for one thing, is highly speculative. The rule will affect a wide range of government agencies and entities across society. However, EPA does not know how these authorities and entities will adapt to the new rule. If the cost estimates are inaccurate by a significant amount, then regulated entities may well shut down, rather than try to comply. This would lead to a dangerous energy shortage with skyrocketing costs. In areas of the United States where fossil fuels are restricted by policy, like California, the electricity network is at risk of blackouts every summer evening. These restrictions are mild compared to those being considered by the EPA.

EPA's biggest failure in properly accounting for costs is the fact that it subtracts federal subsidies from cost estimates.

Based on the CBO score, a nominal decrease of $369 billion is expected. This figure is likely to be higher, as the subsidies do not have a date of expiration.

The practice of EPA to reduce cost estimates in Section 111 based on the amount of federal subsidy amounts to a accounting trick which undermines the intention of the provision. Consider an annual cost of 10% of the gross domestic product for achieving an emissions standard. Congress could pass legislation subsidizing all costs associated with achieving the standard. According to EPA logic, the standard's cost would be 'zero', even though the subsidy costs more than $2 trillion each year and increases the federal budget by about half. Saying that such a standard would cost 'zero,' is a fraud against the public.

The practice violates Section 111. EPA tries a cover-up by presenting a misleading description of Congress' intent.