The Utilities Reply to EPA’s Climate Rules
The ability industry apparently shares some progressive doubts about CCS and hydrogen
There are three big takeaways from the utility industry’s comments on EPA’s proposed recent climate rules. First, the industry seems to share progressive concerns about whether we are able to count on hydrogen and CCS (carbon capture and sequestration). Second, the industry doesn’t invoke the foremost query doctrine, making it clear that it doesn’t view such technology mandates as out of bounds for EPA in the longer term. Third, most of its comments are focused on timing issues. The industry doesn’t endorse the Trump Administration’s very narrow view of EPA’s statutory authority.
Notably, the tone of the industry filing is that the industry is committed to the energy transition and is moving as fast as it might, much different than the stance of conservative opponents.
Technological Viability.
By way of the viability of hydrogen and CCS, the industry tries to walk a fantastic line. It argues that these technologies have great potential. But at the identical time, the industry underscores the technological, economic, and infrastructure challenges that will should be overcome to permit widespread use by 2040. The industry also suggests that it might never be feasible to retrofit lots of today’s power plants with these technologies even when other barriers are overcome.
The thrust of the industry’s argument is that we are able to’t be confident these technologies can be available for widespread use within the 2030s — or possibly ever. Aside from seeing the feasibility of those technologies as unproven, it raises the specter of “the various supporting infrastructure challenges regarding transportation of captured CO2” and “challenges related to permitting recent storage facilities, including advocacy group opposition.”
The industry also contends that current hydrogen mixing projects “don’t include components of the general value chain that can be critical to the provision of low-GHG hydrogen mixing throughout the facility sector.” As well as, the industry says, “low-GHG hydrogen production faces challenges that would limit achievability throughout the industry.”
All of this supports progressive arguments against reliance on these technologies, a minimum of when it comes to the facility sector. We do know, in any case, that renewable energy and battery storage work.
The Dog that Didn’t Bark: The Major Questions Doctrine
The state AGs who challenge EPA’s approach argue that it violates the foremost questions doctrine. That doctrine limits the facility of administrative agencies to issue rules of “vast economic and political significance.” That’s the doctrine the Supreme Court used to strike down Obama’s Clean Power Plan in West Virginia v. EPA.
The ability industry’s approach is way different. The words “major query doctrine” appear nowhere within the document. Neither is there any reference in anyway to West Virginia v. EPA. None.
The industry makes it clear that there’s nothing intrinsically flawed with EPA’s approach; it just doesn’t think the approach is prepared for prime time yet. The truth is, the industry proposes that recent gas power plants be retrofit-ready in case hydrogen and CCS do develop into usable at scale.
Unlike the state AGs, the industry doesn’t lambast EPA’s proposal as outrageous. The core argument is that the proposal has technical flaws and is overly optimistic about CCS and hydrogen use.
Legal Arguments.
The Trump Administration took a particularly narrow view of EPA’s authority. Under the Trump view, EPA could only mandate efficiency improvements at power plants. It couldn’t require fuel mixing (like the usage of hydrogen). Nor could EPA require any type of emission trading, whilst a compliance mechanism.
The utility industry doesn’t make any of those arguments and as an alternative pushes trading as a compliance mechanism. The industry also supports EPA’S proposal to exempt power plants which have federally enforceable agreements to shut down.
The industry’s most important legal argument is way narrower and pertains to timing. It says that EPA cannot set a future date when a technology can be mandatory for the industry. The statute says EPA must selected a technology that “has been adequately demonstrated,” from which the industry infers that it must already be able to use at scale. The industry also relies on the undeniable fact that the regulations for brand new sources develop into immediately applicable to all sources constructed after it’s proposed. Those appear to be tenable readings of the statute but not inevitable ones.
EPA’s reading of the statute is that the feasibility of those technologies for future use has already been demonstrated since the evidence showing future feasibility already exists. In other words, EPA sees “has been demonstrated” to mean that the evidence already exists, not that the technology has already been used at scale. It also argues that a regulation with phased requirements is applicable to recent plants built after it’s proposed, step-by-step as the assorted phases go into effect.
The explanation to favor EPA’s approach is that it is going to give the industry the most effective basis for planning and can encourage the rollout of related infrastructure similar to pipelines. As well as, one reason the technology hasn’t been used at scale is that the industry has been more all in favour of talking about it relatively than investing in it. The industry shouldn’t get to regulate what technologies apply by simply failing to make use of them. I believe these may very well be winning arguments, a minimum of within the D.C. Circuit if not within the Supreme Court.
The industry also argues that it might don’t have any legal recourse if it turned out that the technology was not in truth feasible when the compliance date comes around. That argument seems flawed to me. The Clean Air Act provision on judicial review does generally bar lawsuits against a regulation unless they’re filed almost immediately. But there’s an exception where crucial information only becomes available later. Industry could also petition for a delay in the foundations and sue if that was denied. Simply to eliminate doubt, EPA could include a mid-course evaluation of feasibility within the rule itself.
The Upshot
It will be hard to overemphasize the difference in tone and substance of the utility industry filing versus the overwrought attacks from fossil-fuel interests and conservatives. Unlike them industry is pitching this as a traditional regulatory disagreement and claims to share EPA’s goals. The utility filing might be flawed, but a minimum of it raises arguments that reasonable people would want to contemplate.
In the long run, I’m struck by the undeniable fact that the utility filing seems like it was written by lawyers, while the Republican AGs’ filing seems like it was written by politicians –which in fact they’re. We’ll see which category the federal judiciary matches in.
