THE LINE OF ATTACK AGAINST THE POWER PLANT RULE: Opponents of the Biden administration’s new power plant rule are expected to put the rule to the test on a few key legal grounds, including the “major questions” precedent established by West Virginia v. EPA, with which the Biden administration is confident the proposed rule complies.
Matt Leopold, who as general counsel served as the top lawyer at EPA during the Trump administration, said the dearth of power plants capturing carbon at scale makes the proposed rule’s reliance on CCS a vulnerability. “The caselaw is clear that the EPA may treat a set of control measures as ‘adequately demonstrated’ regardless of whether the measures are in widespread commercial use,” the proposed rule says.
Administrator Michael Regan said last month when EPA announced its rule that he is confident the proposed rule “does not implicate the concerns addressed by the Supreme Court's decision in West Virginia vs EPA.” Transformers are a critical component to electric transmission and distribution, the expansion of which is necessary to meet growing energy demand and the Biden administration’s push to electrify more sectors of the economy.
What’s driving the worries: Utility interests, including the National Rural Electric Cooperative Association, have been warning about supply shortages for transformers for years due to challenges acquiring the equipment and have sought changes to DOE’s rulemaking. The decision lets stand a June 2022 decision from the 9th U.S. Circuit Court of Appeals, which sided with the state of California and several environmental groups in ruling that the federal government had violated various environmental laws—including the National Environmental Policy Act, the Endangered Species Act , and the Coastal Zone Management Act—when it allowed fracking and acidizing extraction practices in federal waters off of California’s coast.
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