EPA to Fight Industry, States Over Power Plant Rules on Thin Ice

The US Court of Appeals for the District of Columbia Circuit is set to hear arguments for the third time over hotly contested greenhouse gas rules for coal-fired utilities, standards that have yet to stick through three presidential administrations.

The appellate panel is scheduled Dec. 6 to hear oral arguments in West Virginia v. EPA, a group of consolidated state and industry challenges to emissions standards finalized by President Joe Biden this year—and will likely be halted by incoming-President Donald Trump in 2025.

“It is highly unlikely that the Court will decide the case,” according to Bracewell LLP partner Jeff Holmstead. “Within a few weeks of taking office, the Trump Administration will ask the court to hold the case in abeyance so that new political officials can decide whether they want to defend the rule.”

At issue this time around is the feasibility of the Environmental Protection Agency’s plans, which rely on carbon capture and sequestration technology as a main industry solution to tackle the more stringent emission limits.

The EPA and its supporters insist that the technology is both feasible and transferable to a power plant setting, but Republican-led states and industry plaintiffs counter that carbon capture is not “adequately demonstrated” as required by the Clean Air Act, and is just another strategy to prematurely retire coal plants.

Arguments will be segmented based on topics, with 90% of the allocated argument time focused on carbon capture and storage requirements and 40% on natural gas co-firing requirements. The remaining time will be geared toward federalism and major questions issues.

“It will still be interesting to hear the questions from the DC Circuit judges,” Holmstead said in an email. “It will give us a sense of whether they have specific concerns about EPA’s determination that CCS has been adequately demonstrated for different types of power plants.”

New Administration Pause

The rule’s implementation is proceeding despite other challenger attempts at roadblocks. The US Supreme Court in October denied a request to freeze the emissions rule during the D.C. Circuit case, a strategy that is currently being deployed against other air regulations with mixed success.

But the power plants rule is probably running on borrowed time, since an incoming Trump administration is slated to have the rule tossed in a new term under a pro-energy agenda.

“This regulation is very different legally than the [previous] West Virginia case,” University of California Berkeley Law professor Dan Farber said in an email. “That being said, despite having already been argued, I’m guessing the court will put it on hold when the new administration makes the request.”

National Rural Electric Cooperative Association, plaintiff in one of the consolidated cases, wrote to President-elect Trump on Wednesday to pave the way for an early defeat of the power plant rules.

“Repealing EPA’s unlawful power plant rule for greenhouse gas emissions as well as numerous other unlawful EPA regulations that threaten electric reliability” is listed in CEO Jim Matheson’s letter as the first of the cooperative’s highest priorities.

Oral arguments will be held at 9:30 a.m. Eastern time at the D.C. Circuit before Chief Judge Sri Srinivasan and Circuit Judges Neomi Rao and Bradley N. Garcia.

The case is West Virginia v. EPA, D.C. Cir., No. 24-01120, Oral Arguments 12/6/24.