Biden braces for legal fracas over climate rule

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May 12, 2023 View in browser   By Pamela King and Arianna Skibell The Supreme Court hampered the Biden administration's ability to regulate power plants last year. | Drew Angerer/Getty Images The Biden administration threw a big party for its proposed limits on carbon pollution from power plants. But if its conservative critics prevail, the rule may never see the light of day. Republican-led states, bolstered by their successful legal smackdown of the Obama administration’s big power plant climate rule, are already planning lawsuits against President Joe Biden’s Environmental Protection Agency. Leading the way will be West Virginia Attorney General Patrick Morrisey, who also led the charge in the last go-round all the way to the Supreme Court. “We expect that we would once again prevail in court against this out-of-control agency,” said Morrisey upon release of the Biden proposal. Last summer, the high court said President Barack Obama’s Clean Power Plan violated what the justices call the “major questions” doctrine, which requires federal agencies like EPA to have clear authority from Congress before they regulate politically and economically important issues — like climate change. ‘Major questions’: The court has yet to define exactly what questions it will consider “major.” But red states could wield the doctrine to launch a legal attack on the power plant strategy that EPA unveiled Thursday. The president’s opponents could also challenge EPA’s focus on climate-friendly technologies that may be difficult and costly to implement, and they could say Biden’s plan all but guarantees that some coal-fired power plants will close, Niina H. Farah and Lesley Clark write. Some environmental lawyers predicted that the Supreme Court’s recent verdict on the Obama-era rule may prove useful for the Biden team’s legal defense. That’s because Biden’s proposal sets its sights on emissions reductions that can be achieved at individual plants — rather than transforming the power sector as a whole, as the Obama rule would have. “EPA is right in the wheelhouse in terms of what the court said to do,” said Jay Duffy, litigation director at the Clean Air Task Force. Power shift: No matter the legal outcome, some environmentalists said they were optimistic that Biden’s proposal could bring more aggressive climate action from the power industry. After all, the power sector achieved the goals of the Obama-era rule more than a decade ahead of schedule, even though the courts stopped the regulation from taking effect. “We'll analyze these EPA climate regs as if they'll stay in place,” tweeted Noah Kaufman, former White House climate official and a current climate economist at Columbia University, “but if they're likely to be rolled back by an ideological court or future admin, what matters most is how they'll move markets right away.”   Thank goodness it's Friday — thank you for tuning in to POLITICO's Power Switch. I'm your host, Arianna Skibell. Power Switch is brought to you by the journalists behind E&E News and POLITICO Energy. Send your tips, comments, questions to askibell@eenews.net. POLITICO Energy Summit: Register here to attend POLITICO’s first-ever energy summit exploring how the U.S. is positioning itself in a complicated energy future and featuring guests such as Energy Secretary Jennifer Granholm and White House climate adviser Ali Zaidi.   DON’T MISS THE POLITICO ENERGY SUMMIT: A new world energy order is emerging and America’s place in it is at a critical juncture. Join POLITICO on Thursday, May 18 for our first-ever energy summit to explore how the U.S. is positioning itself in a complicated energy future. We’ll explore progress on infrastructure and climate funding dedicated to building a renewable energy economy, Biden’s environmental justice proposals, and so much more. REGISTER HERE.     Listen to today’s POLITICO Energy podcast Today in POLITICO Energy’s podcast: Alex Guillén breaks down the details of the new Biden administration rule to curb planet-warming pollution from power plants. Power Centers President Joe Biden arrives in the Rose Garden of the White House. | Susan Walsh/AP Photo Grid reliability concerns President Joe Biden's new greenhouse gas rule is designed to drive drastic changes in how U.S. power companies produce electricity — but utilities say it could escalate the risk of outages as it squeezes fossil fuel plants into retirement, writes Catherine Morehouse. Power producers are already warning that the rule threatens to compromise the power network’s reliability by pushing their older, dirtier coal and gas plants into retirement at an even faster pace than they are closing now. They say it’s especially worrisome if the plants aren’t replaced as quickly as they shut down. Democrats play defense Despite this criticism from industry, not to mention Republican lawmakers, many congressional Democrats are defending Biden's landmark rule, writes Emma Dumain. In interviews Thursday, Democrats downplayed the proposed regulation’s political consequences. They also shrugged off concerns that the new policy would lead to job losses. All eyes on the courts In another corner of the energy world, fledgling carbon capture and hydrogen companies are waiting to see whether Biden's new climate rule will withstand judicial review, write Brian Dabbs, David Iaconangelo and Carlos Anchondo. If the rule survives, companies that capture carbon or incorporate hydrogen into energy production could be in hot demand. The rule could force coal and natural gas plants to adopt these new technologies or shut down.   GET READY FOR GLOBAL TECH DAY: Join POLITICO Live as we launch our first Global Tech Day alongside London Tech Week on Thursday, June 15. Register now for continuing updates and to be a part of this momentous and program-packed day! From the blockchain, to AI, and autonomous vehicles, technology is changing how power is exercised around the world, so who will write the rules? REGISTER HERE.     In Other News Built environment: Biden announced a new fund to help low-income housing get climate upgrades. Hot American summer: Most of the United States is facing an elevated blackout risk this summer as the likelihood of extreme heat grows. Subscriber Zone A showcase of some of our best subscriber content. A man fishes at William B. Ladd Park near the Tennessee Valley Authority's Kingston Fossil Plant in Kingston, Tenn. | Mark Humphrey/AP Photo Experts are split over whether Biden's proposal to curb power plant pollution will deliver on his promise to cut carbon emissions in half by 2030. Federal energy regulators may propose new guidance for enforcing penalties against natural gas pipeline companies that have not sufficiently restored land while constructing new facilities. The cost of a partially finished Midwest transmission line surpassed $500 million as developers await a court ruling that will determine how, and perhaps if, the 102-mile project will be completed. That's it for today, folks. Thanks for reading, and have a great weekend!   Follow us on Twitter Arianna Skibell @ariannaskibell   Follow us

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