Having been denied a request for an extended schedule, petitioners in an ongoing lawsuit challenging the merits of the U.S. Environmental Protection Agency’s (EPA’s) New Source Performance Standards (NSPS) for coal-fired power plants late on January 23 filed a series of briefs with the U.S. Court of Appeals for the D.C. Circuit.
The briefs filed Monday respond to arguments made by the EPA in mid-December, while the agency was still operating under the Obama administration. The last few days at the EPA have been tumultuous, with President Donald Trump, an opponent of many of the regulations placed on the coal industry, taking office January 20.
The NSPS essentially mandates the use of partial carbon capture and storage (CCS) on all new coal-fired power plants. The rule requires that individual units cap emissions at 1,400 pounds of CO2 per megawatt-hour using partial carbon capture. However, according to North Dakota and the other 24 states challenging the rule, CCS is not “adequately demonstrated and achievable,” as is required by Clean Air Act.
According to Monday’s briefs, at the time the rule was drafted there were no operational commercial-scale CCS projects on coal-fired power plants in the U.S., thus the EPA’s prescribed “best system of emissions reduction” is not valid. The EPA has used SaskPower’s Boundary Dam Unit 3 project in Canada to argue that CCS is adequately demonstrated and achievable, but the petitioners argue that because Boundary Dam is subsidized by the Canadian government and owned by the province of Saskatchewan, its operation cannot be used to demonstrate the commercial availability of the technology.
President Trump has not specifically spoken against the NSPS, but he has vowed to roll back the related Clean Power Plan, which seeks to regulate the carbon emissions of existing coal-fired plants. The president also pledged this week to slash all federal regulation by at least 75%, telling a group of business leaders Monday that his administration would “be cutting regulation massively,” according to White House press pool reports.
The EPA did not respond to requests for comment Tuesday, as the agency has been placed under a media blackout by President Trump’s transition team. Under the blackout, EPA staff is barred from responding to reporters and may not publish press releases, blog posts, or any social media content, according to the Associated Press.
A representative from the State of North Dakota Attorney General’s office also declined to comment on the briefs.
Because of the new president’s distaste for regulation, challengers in the NSPS case had petitioned the court in December for an extension in the briefing schedule to allow the new administration time to review the rule for possible reconsideration. In early January, the court denied the request, holding petitioners to the original January 19 deadline. However, because of road closures caused by the presidential inauguration, petitioners were granted a few extra days, eventually filling their briefs on January 23.
Final briefs in the case are due February 6, and oral arguments are scheduled for April 17.
—Abby L. Harvey is a POWER reporter.