The new EPA regulations address air, water, soil and climate pollution caused by power plants, especially those burning coal

U.S. electricity production is rapidly shifting away from fossil fuels toward cleaner, low-carbon sources. The most important reasons are state clean energy goals and the dramatic decline in the cost of renewable electricity.

However, fossil fuel power plants still produce 60% of the electricity supplied in the US, causing air, water and soil pollution and greenhouse gases. To reduce these impacts, on April 25, 2024, the Environmental Protection Agency announced a package of regulations.

They focus mainly on coal-fired power plants, the most polluting source of electricity in the country.

As an environmental lawyer who has been practicing since the early 1970s, I believe that limits on pollution at power plants are long overdue.

The new rules close loopholes in existing regulations that have allowed coal-fired power plants to pollute the country’s air and water for decades. They also require utilities to drastically reduce greenhouse gas emissions from these plants or close them down.

Opponents, including industry groups and GOP attorneys general, have raised concerns and some have said they will file lawsuits. They argue that the EPA has overstepped its legal authority and imposed crippling costs on the coal industry.

While these arguments may appeal to conservative judges, I believe the EPA’s carefully crafted rules are based on solid legal foundations and have a good chance of being upheld.

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Mercury, sewage and coal ash

The first rule updates standards in the 2012 Clean Air Act for mercury and air toxics. Mercury emitted into the air by burning coal is a neurotoxin that causes developmental damage in children and pollutes fisheries across the United States

The new regulations close the so-called The ‘lignite loophole’, which allows power plants burning lignite – the lowest grade of coal – to emit more than three times as much mercury pollution as other coal-fired power plants. Only a few lignite plants still operate in the US, concentrated in Texas and North Dakota. The new rule lowers the mercury emission standard from these plants by 70%.

The second rule tightens standards for wastewater from coal-fired power plants under the Clean Water Act. These plants use a lot of water for cooling, steam production and industrial processes. Wastewater discharged into rivers, lakes and streams contains toxic pollutants such as mercury and arsenic, which threaten drinking water supplies and fisheries.

The EPA estimates that the new rules will reduce these pollutants by about 670 million pounds per year. Owners of coal-fired power plants will have until 2029 to comply unless they agree to permanently stop burning coal by 2034.

Burning coal also produces millions of tons of ash, which can contain toxic heavy metals such as mercury, arsenic and cadmium. The third new rule applies to “historical facilities” – inactive coal-fired power plants – which collectively store 500 million tons of coal ash in unsecured, unmonitored landfills and ponds.

Coal ash seeps have polluted rivers in Tennessee, North Carolina and elsewhere. More than 160 unlined lagoons remain. Most older sites are located in low-income communities and communities of color.

A kayak paddle collects coal ash from the banks of the Dan River in North Carolina after a power plant leak in February 2014 released thousands of tons of ash.

The new rule is a response to a 2015 ruling by the U.S. Court of Appeals for the D.C. Circuit. The EPA adopted a rule that regulates the storage of coal ash at active power plants, but not at inactive plants – an approach that was found to be unlawful by a court. The new regulation will require the safe management of coal ash at previously unregulated facilities.

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Carbon pollution standards

The most potentially controversial provision of the new package concerns greenhouse gas emissions from existing coal-fired power plants and new gas-fired power plants. Section 111 of the Clean Air Act directs EPA to define a “best system for reducing emissions” of air pollutants, including greenhouse gas emissions, from power plants.

States must then submit plans to EPA to adopt these systems. If the state refuses, the agency takes over implementation.

The EPA has determined that carbon capture and sequestration is the best emissions reduction system for both existing coal plants and new gas plants. The agency initially proposed regulating emissions from existing gas-fired power plants, but is postponing that step.

The rule takes a staggered approach to compliance that encourages early retirement of the nation’s aging coal fleet. Plants leaving before 2032 would not be subject to this rule. Those scheduled to close by 2039 would have to reduce emissions by 16% by 2030. Power plants scheduled to operate after 2039 would have to reduce greenhouse gas emissions by 90% by 2032.

To give utilities some flexibility, the rule allows sources to use “green hydrogen” – produced by splitting water using renewable energy – in their fuel mix and participate in emissions trading programs.

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Next stop: Courthouse

In my opinion, the most serious legal challenge is the regulation of greenhouse gas emissions in coal-fired power plants. The mercury and coal ash regulations simply plug gaps in existing regulations, and the wastewater regulations are a long-overdue update to technology standards aimed at controlling toxic discharges.

All three policies fall squarely within EPA’s regulatory wheelhouse and are based on clear statutory authority.

Climate regulations may face a tougher road due to the Supreme Court’s 2022 ruling in West Virginia v. EPA, which struck down the Obama administration’s Clean Power Plan and used a new approach to interpreting regulations called the “principal question doctrine.”

This concept essentially says that where a new rule would have “overwhelming economic and political significance,” Congress must expressly give the agency authority in the matter at hand, and the court will not defer to the agency’s interpretation without regard to political considerations or the agency’s expertise.

The fate of the climate rule may depend on how courts answer these three questions:

Does the principal question doctrine apply?

The EPA went to great lengths to distinguish this rule from the ill-fated Clean Power Plan and followed the Supreme Court’s directive to stay the course. The new rule is based on the traditional, proven approach to setting emission limits based on pollution controls available to individual plants.

Indeed, carbon dioxide capture and sequestration is analogous to scrubbers, devices that the EPA has needed for decades to remove pollutants such as fine particulate matter, sulfur dioxide and mercury from power plant smokestacks. The new rule does not require utilities to switch from coal or natural gas to renewable fuels, which most concerned the court in the West Virginia case.

Is carbon capture and sequestration ready?

The Clean Air Act requires “adequate demonstration” of the best emission reduction system. Courts have interpreted this language to include forward-looking and “technology-forcing” options – meaning that the standards may not be achievable today, but currently available information shows that they will be achievable in the future.

The D.C. Circuit Court has repeatedly affirmed that the EPA has “the authority to require industry standards for improved design and operational advances so long as there is substantial evidence that such improvements are feasible and will provide the improved performance necessary to meet the requirements of the standard.”

Will the regulation impact the reliability of the power grid?

Too rapid a shift to new fuels and technologies can make it difficult for utilities to produce enough electricity to meet demand. However, EPA consulted with state and federal agencies and utilities and conducted a detailed analysis that concluded that the power plant regulations would not have a major impact on reliability.

The rule gives owners until 2032 to turn on carbon capture and sequestration and allows states to keep plants online for an additional year if they show that phasing them out threatens grid reliability. Other provisions provide utilities with additional flexibility.

As of April 2024, there are approximately 200 coal-fired power plants still operating across the United States. Power plants representing a quarter of their capacity are expected to close by 2029 for non-regulatory economic reasons.

The new regulations will certainly make the operation of coal-fired power plants more expensive. This will ensure that the price of electricity generated from coal more accurately reflects its true costs to society. Given the impact of coal energy on our nation’s air, water, land and climate, as well as on public health, I believe this action is fully consistent with EPA’s mission.

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This article was written by Patrick Parenteau of Vermont Law & Graduate School and was originally published on Conversation.

Banner image: Ella Ivanescu