On October 16, 2024, the U.S. Supreme Court (SCOTUS) declined to put a hold on a Clean Air Act (CAA) regulation for New Source Performance Standards (NSPS) that went into effect on July 8, 2024.
The regulation addresses greenhouse gas (GHG) emissions from fossil fuel-fired electric generating units (EGUs) by:
- Finalizing the repeal of the Affordable Clean Energy (ACE) Rule;
- Finalizing emissions guidelines for GHG emissions from existing fossil fuel-fired EGUs, which include both coal-fired and oil-/gas-fired EGUs;
- Finalizing revisions to the NSPS for GHG emissions from new and reconstructed fossil fuel-fired stationary combustion turbine EGUs; and
- Finalizing revisions to the NSPS for GHG emissions from fossil fuel-fired steam generating units that undertake a large modification based on the 8-year review required by the CAA.
“The justices denied emergency requests by West Virginia, Indiana and 25 other states - most of them Republican led - as well as power companies and industry associations to halt the [EPA] rule while litigation continues in a lower court,” U.S. News & World Report says. “The rule would require existing coal and new natural gas-fired plants eventually to reduce emissions including by capturing and storing carbon dioxide.”
In taking their battle to SCOTUS, the plaintiffs claimed they would suffer “irreparable harm” if a hold isn’t placed on the regulation while legal challenges proceed in the D.C. Circuit Court of Appeals.
“Justices Brett Kavanaugh and Neil Gorsuch expressed sympathy for the challengers’ arguments, but they noted that because the litigation is moving quickly in the lower court, they are unlikely to be affected by the rule for now,” news site SCOTUSblog reports.
Challengers to the regulation claim the CAA requires the EPA to determine the “best system of emission reduction” that’s “adequately demonstrated.”
“While acknowledging that 90% carbon capture is an ‘important emerging technology,’ the challengers insisted that it is not currently achievable on a large commercial scale,” SCOTUSblog adds. “‘At best,’ Ohio suggested in its brief, ‘this is like an 1840 law regulating widespread use of incandescent light bulbs.’”
Additionally, challengers have evoked the “major questions” doctrine, claiming Congress didn’t give the EPA the authority to mandate specific technology.
“The challengers also warned the justices of permanent harm if the rule is not put on hold while litigation continues. Without a stay, power companies will have to make ‘irreversible decisions about plant closures, replacement generation, and the like that involve enormous irretrievable costs and risk electric reliability,’ private industry groups told the court,” according to SCOTUSblog. “And the states predicted that allowing the rule to remain in place could lead to ‘major rate hikes’ and leave residents ‘unnecessarily vulnerable to brownouts and blackouts.’”
According to Politico, compliance with the rule begins June 2025.
However, with Donald Trump’s win as the president-elect, it’s likely he will attempt to recall the rule before a decision in the D.C. Circuit Court.