Supreme Court fails to halt damaging power plant rule

Plus, check out our NEPA overhaul op-ed in RealClearEnergy today.

Happy Monday! Debra Struhsacker and I wrote an op-ed today in RealClearEnergy describing how the burdensome permitting process holds up domestic mining and the U.S.’ net-zero ambitions. I hope you will read it, and let me know what you think!

In other news…

Supreme Court fails to halt damaging power plant rule

On Wednesday, the Supreme Court declined to halt enforcement of the Environmental Protection Agency’s egregious greenhouse gas regulations on power plants. However, the Court believes “the applicants have shown a strong likelihood of success on the merits.”

The EPA’s rule, issued in April, requires coal-fired and new gas-fired power plants set to operate past 2039 to capture 90% of their carbon emissions by 2032. Coal plants that agree to shut down by 2032 are exempt from the rules. Coal plants agreeing to retire before 2039 but after 2032 still need to capture some emissions but do not need to capture 90%. The only plausible way to do so is through costly and unproven carbon capture technology.

The U.S. Court of Appeals for the D.C. Circuit is expected to make its decision early next year and before the compliance deadline of June 2025. It may also be the case that the justices are waiting to see the outcome of the presidential election before weighing in. As Utility Dive puts it:

If the Harris-Walz ticket prevails, the administration would likely continue defending the rule, according to the research firm. But even if the D.C. Circuit upholds the rule, the Supreme Court could have the final word on it, ClearView said.

Under a Trump administration, the EPA could ask the appeals court to remand the rule so the agency could rework it, ClearView said. It could also voluntarily implement an administrative stay of the rule while it reconsidered the regulation, according to the firm.

In simple language: the Court thinks the case brought by the utilities, independent power producers, and others will be successful on “at least some of their challenges,” if it reaches the court, but it believes harms will not occur if the rule is not paused now. That’s unfortunate news because utilities and grid operators must plan five to ten years in advance for plant closures—or to begin procuring commercially viable CCS systems.

The Supreme Court’s full ruling is below, with emphasis added:

The applications for stay presented to THE CHIEF JUSTICE and by him referred to the Court are denied.

JUSTICE THOMAS would grant the applications for stay.

JUSTICE ALITO took no part in the consideration or decision of these applications.

Statement of JUSTICE KAVANAUGH, with whom JUSTICE GORSUCH joins, respecting the denial of applications for stay.

In my view, the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency’s rule. But because the applicants need not start compliance until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D. C. Circuit decides the merits. So this Court understandably denies the stay applications for now. Given that the D. C. Circuit is proceeding with dispatch, it should resolve the case in its current term. After the D. C. Circuit decides the case, the nonprevailing parties could, if circumstances warrant, seek appropriate relief in this Court pending this Court’s disposition of any petition for certiorari, and if certiorari is granted, the ultimate disposition of the case.  

This piece was originally published at Center of the American Experiment on October 17, 2024.