BREAKING: EPA eliminates rule that limits ‘greenhouse gas’ emissions from power plants

These very new (today) EPA revised rules have a very interesting contextual legal background worth noting. My money is on EPA winning this one over the inevitable green lawfare.

The legal SCOTUS background is West Virginia v. EPA, which (together with newer Loper Bright reversing Chevron deference) firmly established the major questions doctrine: mere agencies (like EPA) do not get to decide major questions where their Congressionally enabling legislation is vague. Only Congress can do major question clarification by further legislation on the whatever major question is—if it so chooses.

Left a bit still in legal limbo is what actually constitutes a major question?

In another realm, the same limbo issue was just raised again today when New York and other blue states today sued USCIS over the yet again newly revised ‘public burden’ immigration denial standards per the (constitutionally required by A1, section 8, §4) INS Act legislative revision concerning immigration prohibition if a future public burden risk. (The major questions are what is a ’public burden’?—cash or cash plus non direct cash like SNAP, and how long is a ‘future risk’).

What this new CCA EPA rule revision does is provide a provisional answer, which the left will certainly challenge via lawfare, and SCOTUS will therefore have to eventually decide.

The relevant CAA sections are §111(b) and §111(d). The former involves standards for new stationary sources (future power plants by definition), the latter the same for retrofitting existing stationary sources. Put simply, the former is whether EPA has authority to force future power plants to use CCS (carbon capture and storage), the latter is whether they can force existing power plants to retrofit CCS.

Both ‘major questions’ depend on something very specific elsewhere in CAA—EPA has NO legislatively granted authority to order by regulation an environmental solution that is NOT already ‘commercially established’. (The actual CAA prohibitory language is more sophisticated, but this already too long comment formulation distills the legal gist.)

A good example of what was already ‘commercially established’ is coal flue gas sulfur dioxide wet scrubbing using lime to chemically solve at its source the acid rain problem. It easily worked technically, and was already successfully in commercial use. So EPA was able to force all existing coal plants to retrofit, and all new coal plants to use, CO2 scrubbing using water entrained calcium oxide powder finely sprayed into the hot coal fired smokestack flue gas. The resulting ‘waste product’ is commercially valuable gypsum for making drywall. Which is now why all operating coal plant smokestacks photographed in reddish light at dawn or dusk emit ‘smoke’—actually just condensing water vapor from the required SO2 wet scrubbers, the scrubber gypsum slurry having already settled out at the stack bottom (below the flue gas injection) to be sold—the cover illustration of my ebook ‘Blowing Smoke’.

The EPA has subsidized several times over the past 15 years efforts to prove that power plant CCS is also ‘commercially established’. The only effort anywhere that ever got operational was SASK Power’s Boundary Dam unit 4, where the coal fired captured flue gas CO2 was to be sold for valuable adjacent tertiary heavy oil recovery injection. It has proven to be a commercial disaster (parasitic unit 4 electrical loads 35% rather than 20%, uptime after 15 years of constant engineering tweaking only at best 60% (up from 40) rather than the projected 85%. So bad the Boundary Dam unit 4 CCS oil field customer finally cancelled the CO2 purchase contract for non-performance. EVERY other attempt in North America and Europe got cancelled before even starting—despite EPA (and other, like UK and Norway in EU) CCS support guarantees. The details of all these globally failed efforts are enumerating in essay ‘Clean Coal’ in ebook Blowing Smoke.

So the EPA is on very solid legal grounds today. Lawfare will only give SCOTUS an eventual opportunity to further refine and solidify the ‘major questions doctrine’. Here, there isn’t even a real ‘major question’. CCS isn’t ’commercially established’. The CAA required that it must be before EPA has regulatory jurisdiction to impose a use mandate.