In what may be a world record for turnaround time, the litigation has already begun over the recent rescission by EPA of its carbon emission standards for fossil-fuel fired power plants.
As reported here on September 17, on that date the EPA finalized its rescission of what were called its “Carbon Pollution Standards” for electric power plants. (EPA’s September 17 action did not rescind all of the Carbon Pollution Standards for power plants, but only those for existing power plants and major overhauls of existing plants; the standards for new plants remain in effect for now, although in its rescission action EPA gave strong hints that those will also soon be ended.). By the end of that very day, September 17, a Petition had been filed in the DC Circuit seeking review of the regulatory action. Here is a copy of the Petition. The Petitioners are the American Lung Association, American Public Health Association, Clean Air Council, Clean Wisconsin, the Environmental Defense Fund, and the Natural Resources Defense Council.
The Petition is a short two-page document that simply asks for “review” of EPA’s action, and does not say anything about the grounds for the request. To learn the basis for the request, we must look to the press releases issued by the various petitioning organizations. Those contain statements from representatives of the Petitioners, mostly about imaginary threats to “health” from this thing they call “climate pollution.” But one thing that none of the Petitioners’ representatives do in their statements is address the grounds set forth by EPA for the rescission.
Here is a copy of the Press Release issued on September 17 by the Environmental Defense Fund. It contains quotations from representatives of EDF, of the Natural Resources Defense Council, of the American Public Health Association, of the American Lung Association and of Clean Wisconsin about the supposed importance of keeping the rules in place. For example, we have this from Georges Benjamin of the APHA:
“Clean air is a basic human right. Power plant pollution threatens the health of millions of Americans and fuels climate change, worsening extreme heat, poor air quality and other serious health risks. . . .”
Or this from Harold Wimmer of the American Lung Association:
“Emissions from power plants drive climate change, and climate change is a health emergency. . . .”
But OK guys, the issue raised by EPA’s rescission is that the proposed technological fix in the Biden-era rule, namely 90% carbon capture and sequestration (CCS), “has not been adequately demonstrated, the costs of 90 percent CCS are not reasonable, and the associated degree of emission limitation is not achievable.” None of the Petitioners address any of those questions in their statements.
Compared to other environmental litigations that involve highly abstract or theoretical questions, this one looks to turn on easily available concrete evidence. Is there a functioning, economical power plant with CCS that can be easily replicated throughout the electrical system? If so, the Petitioners can just point to it. Even better, they could offer to build such plants wherever needed.
However, that may not be so easy. When the Biden EPA proposed its “Carbon Pollution Standards” as a regulation in 2023, many commenters pointed out the infeasibility and high cost of the CCS approach. Two of the most thorough and sophisticated comments were submitted by groups of red states led by Ohio and West Virginia. This is from the Ohio comment at page 4:
A study of 263 carbon-capture-and-sequestration projects undertaken between 1995 and 2018 found that the majority failed and 78% of the largest projects were cancelled or put on hold. After the study was published in May 2021, the only other coal plant with a carbon-capture-and-sequestration attachment in the world, Petra Nova, shuttered after facing 367 outages in its three years of operation.
The West Virginia comment went into great technical detail about the problems and feasibility issues with CCS. Among other things, West Virginia (at pages 24-25) cited a study that concluded that because a CCS system uses a substantial fraction of the energy output of a plant, it will inherently cause a dramatic reduction in the plant’s efficiency:
Take efficiency to start. CCS units run on power, too. An owner can get that power from the plant itself. But this approach makes the plant less efficient by increasing its “parasitic load”—and CCS more than triples combustion turbines’ normal parasitic load. . . . This is the cause the Wyoming study analyzed that showed installing CCS technology would devastate plants’ heat rates and lower net plant efficiency by 36%.
And when you must burn dramatically more fuel to get the same amount of usable electricity, you inherently increase the emissions of all other pollutants that come from burning fuel (from West Virginia comment, page 27):
Nearly a decade ago, the European Union’s European Environmental Agency released a study finding that CCS would increase “direct emissions of NOx and PM” by nearly a half and a third, respectively, because of additional fuel burned, and increase “direct NH3 emissions” “significantly” because of “the assumed degradation of the amine-based solvent.”
And how about the chemicals that are used to remove the CO2 from the emissions stream? Again, from the West Virginia comment on the Biden rules (page 27):
The Proposed Rule would force utilities to adopt and communities to accept all aspects of CCS technology without fully understanding the ramifications. For example, the environmental and health effects of CANSOLV—the leading amine-based and EPA-recommended CCS solvent, 88 Fed. Reg. at 33,291—appear unknown; leading CANSOLV studies over the past decade don’t discuss its impact.
The questions of feasibility and cost of CCS systems for fossil fuel power plants are things where expert testimony is inherently unsatisfactory. If this technology is feasible and economical, then build it and prove it.
Unfortunately, the Petitioners in this case have little to no interest in maintaining a functioning electricity system.
