The Environmental Protection Agency (“EPA”) has attempted to cut down carbon emissions from US power plants by way of regulatory action. This week, Landmark filed a regulatory comment to challenge the legality of this attack on American power producers.

            The Proposed Rule, titled, “New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule,” seeks to set new emissions limits for fossil fuel powered electricity plants. One method for greenhouse gas reduction they attempt to implement is the use of carbon capture and sequestration/storage (CCS) technology. CCS is a process for capturing carbon dioxide gas before it enters the atmosphere and converting it into a form that can be stored underground indefinitely. It is not currently widely used due to the hefty costs and complex technology required to implement it.

The stated intent of the proposed rule is to curb climate change by regulating the “largest stationary source” of greenhouse gas emissions, fossil fuel power plants. Realistically, the EPA is pushing for a measure that would increase the cost of electricity production or force reliance upon renewable sources of energy. At worst, the proposed rule would reduce the productive capacity of our nation’s electric grid in a time when energy demands are increasing.

            Landmark’s regulatory comment focused on the legal shortcomings of the EPA’s proposed rule. When performing the required analysis to calculate the costs and benefits, the EPA uses a valuation metric calculated by a so-called Interagency-Working Group (“IWG”). The metric, known as the Social Cost of Greenhouse Gases (“SC-GHGs”) is a monetary valuation for calculating the overall cost of releasing one ton of greenhouse gas into the atmosphere. They include virtually every external cost of additional carbon dioxide, nitrous oxide, and methane present in the environment.

Despite their sweeping legislative intentions, the IWG did not have the authority to implement the legally-binding SC-GHG metrics in the first place. The Working Group was created by President Biden under Executive Order 13990, which gave the IWG the powers of an administrative agency. However, the IWG is not vested with any statutory authority to act as an executive agency. In fact, Executive Order 13990 fails to cite a single specific statute authorizing the creation of such a Working Group.

Landmark further identified that the IWG bypassed the process of notice-and-comment, which is required under the Administrative Procedure Act for all federal policy making. By doing so, the IWG violated an indispensable part of the federal regulatory process.

The Biden Administration’s solution to reducing greenhouse gas emissions is to attack the source of a large amount of electricity production in the US. In combination with similar regulatory thrusts to push the country toward electric vehicles, this regulation would have an enormous effect on the American economy. Together these rules would make electricity production more expensive for consumers while simultaneously increasing demand. The Biden administration has already allocated $65 billion to expand clean energy infrastructure, and billions more will be needed to reach the greenhouse gas thresholds required by the proposed rule. Lastly, the proposed rule would necessitate implementing new, largely untested technology over vast swaths of the power grid. In many cases, power plants would be forced to close and renewable energy sources would take their place, at a cost to consumers and producers.

Landmark’s comments on this burdensome regulatory action are available here.