Curtis Tate Published

Supreme Court Won’t Block EPA Carbon Limits On Power Plants

Concrete cooling towers and smokestacks loom over a power plant site against a clear sky with a trace of water vapor entering the air.
Wheeling Power's Mitchell Plant in Marshall County.
Curtis Tate / West Virginia Public Broadcasting
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The U.S. Supreme Court has, for now, let stand a new federal rule sharply limiting carbon dioxide emissions from power plants, which West Virginia and other states had challenged.

By a vote of 7 to 1, the justices denied the application for a stay of the U.S. Environmental Protection Agency’s rule, announced in April.

West Virginia Attorney General Patrick Morrisey filed the suit in the U.S. Court of Appeals in the District of Columbia the following month and asked the Supreme Court to block the rule immediately.

Only Justice Clarence Thomas would have granted the stay, and Justice Samuel Alito didn’t participate. Justice Brett Kavanaugh wrote that “the applicants have shown a strong likelihood of success on the merits” of their challenge to the EPA rule.

However, Kavanaugh added that because electric utilities don’t have to begin compliance work until next June, “they are unlikely to suffer irreparable harm” before the D.C. Circuit decides the case on the merits. A decision is expected in this term.

In a statement, Morrisey said, “we will continue to fight through the merits phase and prove this rule strips the states of important discretion while forcing plants to use technologies that don’t work in the real world,” referring to carbon capture, an expensive and largely unproved option to curb emissions, as well as using clean-burning hydrogen instead of coal to produce power.

Morrisey, who’s the Republican nominee for governor, successfully challenged the Obama-era Clean Power Plan at the Supreme Court. The U.S. power sector achieved and exceeded the plan’s goals, even though it never took effect.

“Here, the EPA again is trying to transform the nation’s entire grid, forcing power plants to shutter,” he said in the statement.

Justice Neil Gorsuch joined Kavanaugh’s statement. Both justices were appointed by former President Donald Trump, who had the support of the coal industry but failed during his term to slow the closure of coal-burning power plants.

The EPA rule would require a 90 percent reduction of CO2 emissions at existing coal plants and new natural gas plants.

Though power companies could capture and store those emissions, many could opt to shut down the plants instead.

If the rules hold up, the EPA projects $370 billion in climate and public health benefits over the next two decades. The agency’s analysis predicts a reduction of 1.38 billion tons of CO2 through 2047, the equivalent of the annual emissions of 328 million gasoline powered cars.