EPA’s CCS requirement is illegal; The agency blocked its Science Advisory Board from saying so 10 years ago

From JunkScience

Steve Milloy

EPA proposed today that utilities stop burning coal and natural gas by 2040 unless power plants can be outfitted with carbon capture and storage (CCS) technology. The agency tried mandating CCS 10 years ago, but its Science Advisory Board got in the way. So EPA killed SAB review of CCS.

After EPA’s September 2013 proposal to mandate CCS for new coal plants, a working group of the EPA’s SAB recommended the full SAB review the practicality of CCS:

But EPA didn’t want the SAB to conclude that CCS was not ready for print time. So agency staff told the SAB leadership to stop the review.

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Tom Halla
May 13, 2023 6:18 am

The basic policy is a flat violation of West Virginia v. EPA, denying the EPA power to act on a major issue without Congress approving.

Joseph Zorzin
Reply to  Tom Halla
May 13, 2023 7:52 am

Now if the ff industry had guts- it would organize and fight this all the way to the Supreme Court.

Reply to  Tom Halla
May 13, 2023 8:25 am

The problem is how bureaucrats and courts interpret the definition of a “major issue”, known as the major questions doctrine. Leftists, zealots, and the immoral will always twist the law and interpret it in ways that bear no resemblance to the original plain meaning to suit their agenda; for example, the ongoing battles in the courts to interpret “sex” (gender) in Title IX of the Civil Rights Act to include people with gender identity disorder, allowing men to compete in women’s sports. All they have to do is find judges that will go along with them, all the way to the Supreme Court. Luckily there are now 6 of 9 justices who (mostly) read the law with the original plain meaning, but that wasn’t always the case and may not be so in the future. Leaving it to courts to decide is precarious and anti-democratic.

The major questions doctrine arose from the 1946 Administrative Procedure Act (APA) when the “progressive” Democrats in Congress, in an astonishingly regressive move, gave bureaucrats in federal agencies legislative power that the authors of the Constitution specifically reserved only to elected representatives of the people in Congress for good reason. The number and size of federal agencies expanded dramatically during the progressive New Deal era starting in 1933 under Franklin D. Roosevelt and Democrat-majority congresses (that persisted for over 60 years until the electoral tide finally changed in the 1994 elections). Congress decided it could no longer be bothered with the minutiae of thousands of regulations that those new agencies wanted so they gave them (ostensibly) limited legislative power in 1946. That’s what started the explosion of regulations and court cases challenging them.

WattsUpWithThat frequently urges us to send emails during the “public comment period” of a proposed regulation, a process established by the APA. It’s largely meaningless and ineffectual. There is no statutory requirement for bureaucrats to stop a regulation if a majority of the public comments are opposed to it. They can (and often do) ignore the public.

The Supreme Court’s “major question” is about proposed regulation with such widespread and significant (economic and/or political) impact that it should be decided by Congress not bureaucrats. What constitutes a major question is nebulous and left to interpretation.

Federal agencies under the Executive Branch are given authority to “execute” the laws that Congress implements; to make sure they are enforced and penalties applied for non-compliance. Giving these unelected bureaucrats power to also create the laws is anti-democratic and inevitably leads to the autocratic mess we have today in the alphabet soup of federal agencies like the EPA, FDA, OHS, FCC, FTC, FAA, etc.

The only way this mess ends is if Congress takes back legislative power from federal agencies and keeps it where it belongs and where the Constitution properly placed it: with our elected representatives. Unlike agency bureaucrats, they answer to their constituents and we can fire them. Urge your representative to overhaul or repeal and replace the Administrative Procedure Act. Every other “solution” is simply “sound and fury, signifying nothing.”

Reply to  stinkerp
May 13, 2023 11:06 am

Agreed! And thank you for laying this out so clearly.

This is the most important issue ongoing in America. We are losing the power of the people to govern ourselves.

Green issues are only some of the most upfront expressions of this destruction of American democracy and representative government.

We must vote for leaders who demand dismantling the current administrative state.

Reply to  Tom Halla
May 15, 2023 1:45 pm

I read that authorizing language was included in the Anti Inflation Act

Ron Long
May 13, 2023 6:23 am

Good report from Steve Malloy over at JunkScience. There is no doubt that the EPA, along with DOJ, FBI, and Homeland Security, among others, has been radically Weaponized by the current Biden Administration. As a Professional Geologist with 48 years experience dealing with the BLM in filing permits for mining exploration projects in several western States, I believe this is what has happened, and will continue to happen: during Democrat Administrations the rules and regulations, to include outright misconduct, lurches way to the left, then under a Republican Administration it comes somewhat back toward the middle, but the net effect is moving to the left. Now, the Biden Administration has just outright weaponized many agencies, and we get the WOKE/CAGW nonsense writ large.

John Oliver
Reply to  Ron Long
May 13, 2023 8:26 am

Yes Ron you nailed, We heard from an individual living in China on another site about what it is like living in China. He had not been heard from in awhile. His multilayer VPN + set up had not been working for awhile .Paraphrase he said “Most people here are miserable afraid to speak out but grateful for what little they have” . I got the impression that many are either brainwashed or resigned to their situation. We are on the way to the same fate if things arn ‘ nt changed soon.

Pat Frank
May 13, 2023 6:40 am

The concise summary: agency officials have long since decided that Carbon Capture and Storage is within the remit of EPA eco-political hacks and that the Science Advisory Board should butt out.

Fred H Haynie
May 13, 2023 7:46 am

CCS will have little to no effect on atmospheric concentrations of CO2, nor will completely stopping burning of fossil fuels. Natural emissions of CO2 are at least 20 times greater than anthropogenic emissions and have been increasing sense the little ice age. There is no accumulation of CO2 in the atmosphere from year-to-year. The open, cold polar waters are the ultimate sinks for atmospheric CO2.

Steve Case
Reply to  Fred H Haynie
May 13, 2023 8:01 am

“There is no accumulation of CO2 in the atmosphere from year-to-year.”

So you don’t believe the “Keeling Curve“? Please tell me I’m just reading that wrong.

CD in Wisconsin
May 13, 2023 7:50 am

Sigh. Here we go again. Treating a necessary and beneficial component of the Earth’s atmosphere as a pollutant. And we are supposed to be believe CO2 is both? Reminds me of Orwellian doublethink:


“Doublethink is a term first introduced by George Orwell in his novel, Nineteen Eighty-Four. In the novel, Orwell describes it as “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”” 


Let’s outlaw water too. It’s also a greenhouse gas. And when someone is exposed to excessive amounts of it, water can kill you. It’s called drowning.

When politicians, bureaucrats and the mass media stop taking their cues from Orwell’s novel, I will stop referring to them all collectively as Big Brother. “War is Peace. Freedom is Slavery. Ignorance is Strength.”

CD in Wisconsin
Reply to  CD in Wisconsin
May 13, 2023 8:08 am

I should petition the EPA to regulate dihydrogen monoxide as a pollutant because it is a more potent greenhouse gas in its gaseous state than CO2 is. It also can cause a lot of property damage (flooding, rust and rot). Power plants need to stop emitting dihydrogen monoxide into the atmosphere.

Joseph Zorzin
May 13, 2023 7:50 am

“EPA is proposing Clean Air Act emission limits and guidelines for carbon dioxide…”

CO2 doesn’t need cleaning- it’s not dirty, so it can’t dirty the air. Subject closed.

Curious George
May 13, 2023 8:20 am

Down with the Second Law of Thermodynamics! EPA does not have the power to do it, but Congress might 🙂

Rud Istvan
May 13, 2023 8:47 am

A couple of small details the EPA is ignoring.
The only large scale CC in the world is unit 4 of SaskPowers Boundary Dam generation station. Despite years of effort it has never acheived more than about 60% uptime, while the parasitic power loss is over 30%.
The only large scale S trial in Illinois failed completely.
So there is no viable CCS. So the EPA rule violates reality. Hence no SAB review.

Reply to  Rud Istvan
May 14, 2023 1:20 pm

There is a CCS system on unit #8 of the Parish Steam Electric Station. The system was used to generate CO2 for oil reservoir injection. The system cost over $1 billion to install and was shut down in 2020 since it was not economic with $50 oil.

Steve Case
May 13, 2023 9:25 am

“EPA proposed today that utilities stop burning coal and natural gas by 2040 unless power plants can be outfitted with carbon capture and storage (CCS) technology.”

Edicts like this from totalitarian governments is used to destroy cultures that they don’t like has been going on forever. It’s biblical, old testament type stuff:   

“Exodus 5:18. Go therefore now, and work; for there shall no straw be given you, yet shall ye deliver the tale of bricks.”

Climate Change IS religion and it is being jammed down our throats:

Go therefore now, produce; yet ye shall use no coal and emit no evil gas, yet shall ye deliver the quota of energy.

John Pickens
May 13, 2023 9:26 am

The fact that carbon capture has never been proven to work, and even if it did, would be basically break even on energy to CO2 production doesn’t bother these EPA pinheads one bit. Just like the Tesla heavy trucks, California and the greens are mandating them, even when nobody has proven thst they are net positive in energy to CO2 balance.

Reply to  John Pickens
May 13, 2023 5:34 pm

There was 1 use-case for the Tesla Semi that made sense (probably the only case): a logging truck, going up the hill or mountain empty and coming back down heavily laden, with that regen braking charging the batteries. So free electricity and probably massive savings in maintenance costs (imagine the savings in brake pads even with engine braking!).

And also some usage case involving a lot of stop and go traffic – but it seems the test buses haven’t fared well.

I like the tech and it’s a lot more realistic than pumping CO2 into the ground.

Ocean fertilization makes a lot more sense – because, besides the fake ecovirtue, the whole food chain from plankton on up to us would benefit. I think alarmists, realists and skeptics could agree, if done in moderation, ocean fertilization would be a win.

May 13, 2023 11:52 am

The EPA is completely out of control and needs to be disbanded. All of it’s actions need to be revisited and any rule that can’t stand up to scientific justification needs to be thrown out.

Rud Istvan
Reply to  Bob
May 13, 2023 12:06 pm

The basic problem with the EPA is that it accomplished its original mission about 20 years ago and should have sunsetted itself. But that is not what bureaucracies do.

Beta Blocker
May 13, 2023 12:51 pm

The EPA has two alternative pathways for mandating CCS as a technology for reducing carbon emissions from coal-fired and gas-fired power plants.

The pathway most likely to survive in the courts is to classify carbon emissions as ‘criteria pollutants’ under sections 108 and 110 of the Clean Air Act. The legal foundation for adopting a Section 108 / 110 approach is already in place.

The other pathway would be to go with Clean Power Plan 2.0 using a Section 111 approach.

That approach is less likely to survive challenges in the courts. But it would be quicker to implement than using a Section 108 / 110 criteria pollutant approach and would have the same effect in discouraging future investment in coal-fired and gas-fired power generation.

Here is my analysis from ten days ago:

AGW is Not Science: “Didn’t we already go through this?! The EPA does NOT have the authority to regulate dispatcheable energy out of existence, since Congress did not explicitly grant the agency such power. Obama’s “Clean Power Plan” is like Dracula risen from the grave, again.

The most powerful regulatory pathway the EPA could use to legally regulate coal-fired and gas-fired power plants out of existence would be to categorize CO2 as a criteria pollutant under sections 108 and 110 of the Clean Air Act.

2022’s Inflation Reduction Act (IRA) contains language in several places which labels carbon dioxide and other carbon GHG’s as pollutants. The inclusion of this language in the IRA is clearly intended to give the EPA a basis for claiming that there is Congressional intent to authorize direct regulation of carbon dioxide as a pollutant.

The question now becomes, what kinds of regulatory mechanisms will be used by the EPA in directly regulating carbon emissions from power plants?

Carbon GHG’s as Criteria Pollutants

The environmental law community has long advocated for the classification of carbon dioxide and other carbon GHG’s as ‘criteria pollutants’ under sections 108 and 110 of the Clean Air Act (CAA).

The EPA has authority under the Clean Air Act to add new criteria pollutants to the original list established fifty years ago. This can be done by first publishing a Section 108 Endangerment Finding for carbon and then by establishing a National Ambient Air Quality Standard (NAAQS) for carbon GHG’s.

A Section 202 finding for carbon was published in 2009 and has been successfully defended in the courts. The existing Section 202 finding could be quickly and easily adapted for use as a Section 108 finding.

Classifying carbon GHG’s as criteria pollutants would enable the use of a variety of regulatory tools for directly suppressing the emission of carbon GHG’s. Which is why the environmental law community has been such an ardent advocate for adopting this approach.

Should the Courts be Resolving Basic Questions of Science?

If the EPA classifies carbon GHG’s as criteria pollutants and publishes new regulations to control those ‘pollutants’, court challenges to the new regulations will force the courts to decide whether or not to examine the science behind the Section 108 endangerment finding, as well as to examine the process that the EPA used in developing the finding.

Determining the truth of a scientific question is not something the courts like to do. Courts historically have left it to the regulatory agencies to determine the truth of a scientific claim.

Because the courts have already upheld the Section 202 endangerment finding for carbon published more than a decade ago, the courts would likely uphold a Section 108 endangerment finding.

Best Technology for Controlling Carbon GHG’s as Criteria Pollutants

The original Clean Air Act from fifty years ago promoted a policy of using the best available technology for controlling emissions of pollutants, but while also being cognizant of the costs. 

The regulatory processes originally enabled by the Clean Air Act for criteria pollutants attempted to strike a rational balance between the benefits and the costs of pollution abatement. 

Pushing carbon capture and storage as the best available technology for carbon pollution abatement, even with its many issues, is a policy which best fits under a Section 108 / Section 110 type of regulatory approach. 

So another question arises. What is the EPA’s true motivation in pushing CCS? What role does CCS play in the EPA’s broader anti-carbon strategic plan?

In using a criteria pollutant type of anti-carbon strategy, the EPA might choose to claim that carbon capture and storage, even with all of its problems, is still the best currently available technology for controlling carbon emissions from power plants. 

Is this an honest position? 

Probably not. That CCS doesn’t work very well and is horrifically expensive at scale is very likely a feature of the EPA’s anti-carbon strategy, not a bug.

The very fact that legacy coal-fired and gas-fired power generation is under intense regulatory attack makes it financially imprudent either to build new gas-fired capacity or to upgrade legacy capacity in response to increases in power demand.

If through a process of asset churn, the power utilities can make a profit on every windmill, every solar panel, every battery, and every mile of new transmission line they install, then that’s the route they probably will go.

Clean Power Plan 2.0

What if the Biden Administration decides against using a Section 108 / Section 110 approach and does not choose to classify carbon GHG’s as criteria pollutants?

Suppose they attempt to use other sections of the Clean Air Act in suppressing America’s carbon emissions? Such an approach would be, in its practical effect, Clean Power Plan 2.0.

Why would the Biden Administration go that route?

The strategy underpinning that kind of alternative approach — i.e., not to identify carbon GHG’s as criteria pollutants, but to use other sections of the Clean Air Act — would be to place immediate pressure on the power generation industry not to build more gas-fired power plants and not to upgrade legacy plants for purposes of meeting increases in power demand.

Clean Power Plan 2.0 would spawn a very long and very expensive battle of lawfare legal combat in the courts. This is a feature of a CPP 2.0 approach, not a bug.

The legal battles spawned by Clean Power Plan 2.0 would act as a manpower sink in keeping lots of well-paid lawyers and consultants on both sides of the issue very busy, while at the same time making it very imprudent to build new gas-fired capacity or to upgrade legacy capacity in response to increases in power demand.

The Major Questions Doctrine

Suppose that the issue eventually ends up in the US Supreme Court and the court rules against the EPA citing the Major Questions Doctrine.

The Biden Administration has said explicitly and unequivocally that it will ignore any decisions handed down in the courts which are adverse to its climate change agenda.

Unless the Biden Administration is voted out of office in 2024 — something I view personally as being highly unlikely — then the EPA will have its way one way or another.

May 13, 2023 3:39 pm

The EPA is in a funny position. Geologic injection of CO2 is critical to the process. CO2 injection is easy enough to permit if you are using natural CO2. The EPA made ANTHROPOGENIC CO2 injection permits nearly impossible (because chemistry and physics aren’t compelling to the EPA).

They made it impossible to do CCS and are now claiming that it is a proven practice.

Maybe the EPA should create an MOU to talk to the EPA…

Reply to  vboring
May 13, 2023 4:22 pm

These are the same people who claim long term storage of small amounts of nuclear waste is an ecological nightmare. So why would storing gigatons of Carbon Dioxide underground be any different?

May 13, 2023 4:14 pm

CO2 capture and storage is impossible to achieve without massive energy input. Anyone who says otherwise is not dealing with reality.

May 14, 2023 1:11 pm

The law authorizing the EPA explicitly says BACT (best AVAILABLE control technology). It is my understanding that no one can get a carbon capture system to work for more than a few months. And, the CCS systems require 40 to 50% of the electricity produced in order to work.

BACT is legally defined to run for a year without major work. All the reports that I have read so far say that the amine solution gets salted out in three months or so. Then the amine vendor has to show up with several 18 wheelers of 55 gallon drums of new amine at $4,000 per drum. The amine vendors love it. The power plants go broke buying several million dollars of amine several times a year.

And disposing of that used amine is expensive too. SO2 forms a heat stable salt with all amines. If your SO2 scrubber burps (and they all burp), kiss off your amines.

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