Most plans to stabilize atmospheric carbon in time to avoid the worst effects of global warming rely heavily on rapid reductions in greenhouse gas (GHG) emissions from the electricity sector. We have the proven technologies that would allow us to do so relatively cost-effectively. But as I noted in a previous post the legal path to that goal is strewn with big legal and political obstacles, some created by the Supreme Court’s West Virginia v. EPA decision, which took a restrictive view of EPA power under the Clean Air Act.

In Climate of Contempt I say this about the Biden EPA’s proposal to reduce power plant emissions:

The Biden EPA, like the Obama EPA before it, has chosen to rely on Clean Air Act section 111(d) to regulate GHG emissions. That choice seems legally risky. … [S]ome argue that the IRA patches the legal holes identified by the West Virginia Court, [and] … will stimulate development that will “demonstrate” technologies such as CCS that weren’t previously “adequately demonstrated” under the Court’s reading of section 111(d).

The EPA proposal described two technologies for getting to net zero emissions at fossil fueled power plants: (i) blending increasing amounts of green hydrogen with fossil fuels, and/or (ii) capturing and sequestering carbon emissions (CCS). The proposed rule argued that both technologies satisfy the Clean Air Act requirement that they be “adequately demonstrated … considering cost.”

The final rule is scheduled to come out soon, possibly today,* for reasons explained below. According to some reports, the final rule will abandon hydrogen blending altogether and rely on CCS only, possibly because green hydrogen production is not yet sufficiently well-established to satisfy the statutory test. Its coverage may be narrowed, leaving regulation of existing (as opposed to new) gas-fired power plants for later. All of these concessions reflect legal and political realities. As I noted in my prior post, it is not clear that the Supreme Court will agree that CCS satisfies that statutory standard, or that the rule can survive a Major Questions Doctrine challenge.

The political obstacles are also looming larger lately. On April 20, 2024 a group of moderate Democrats in the House wrote to EPA asking it to delay the final rule. The letter was authored by Rep. Marcy Kaptur (D-OH), whose state is turning redder (more Republican) fast. Kaptur  expressed concern that

the EPA’s proposed power plant emissions rule does not adequately account for impacts to electricity affordability and reliability and the impact on the working people who have spent their lives ensuring affordable, safe power for America’s Heartland. Rural, low-income, and underserved communities in the Great Lakes Region, including many in my district, are only now recovering economically from decades of harmful trade policies. Continued access to reliable and affordable electricity is critical to further economic recovery and job growth. What’s more, many of my constituents already struggle to pay bills for basic services including water and electricity. Achieving climate goals cannot come at the expense of hard-working Ohioans and Americans striving to build better lives for themselves and their families. …

Four other Democrats, who also represent competitive districts, joined Kaptur in signing the letter. A few months earlier a group of moderate Democrats in the Senate — Sherrod Brown (D-OH), Joe Manchin (D-WV), Mark Kelly (D-AZ), Kyrsten Sinema (I-AZ) and Jon Tester (D-MT) – sent EPA a similar (but more vague) letter urging the agency to “consult with stakeholders from both industry and labor to ensure that the final rule facilitates a responsible nationwide clean energy transition while protecting the jobs of millions of Americans, ensuring electric reliability and affordability.” Senator Brown has been a staunch economic populist and ally of the climate coalition, but he is facing a difficult reelection battle in Ohio, and his rhetoric about a variety of issues has shifted accordingly.

By requesting the delayed issuance of the final rule, the House moderates were presumably seeking to avoid having to explain the rule to their constituents just before an election.[1] But as a practical matter, they are asking for action that could kill the rule altogether. Unless the rule is finalized before mid-May, there is a reasonable possibility that its review under the Congressional Review Act would be performed by the next Congress. If that Congress is entirely under Republican control, the rule would probably be overturned, even if Joe Biden is reelected, sending the regulatory process back to square one. The rule won’t be delayed, but the fight over CRA review will put moderate Democrats up for re-election on the spot.

When it comes to the energy transition, all roads lead through the ideological middle of Congress. Voters are the ones who determine where that middle is, and who represents it. For the foreseeable future voters in the few remaining purple districts will be making that choice. The climate coalition would be well served by focusing on what moves those voters in the desired direction. – David Spence


*The rule did come out today and was as described here.  By omitting existing gas-fired plants from its coverage, it improves the possibility of surviving judicial review, but by how much is difficult to say.


[1] The average House Democrat has a double-digit partisan advantage (denoted “D+#”) in their district, according to the Cook Political Report. The Cook ratings for the districts represented by the letter signers is as follows: Marcy Kaptur (D-OH) – R+3; Jared Golden (D-ME) – R+6; Mary Sattler Peltola (D-AK) – R+8; Henry Cuellar (D-TX) – D+3;  Vicente Gonzalez (D-TX) – D+9.