Idaho Attorney General joins emergency appeal to halt EPA's carbon rule

Attorneys general in 25 states, including Idaho AG Raúl Labrador, have sent an emergency appeal to the United States Supreme Court asking it to immediately halt a Biden administration rule that they say threatens to shutter the country’s remaining fleet of coal-fired power plants.

The emergency appeal to stay the Environmental Protection Agency’s plans to require strict greenhouse gas emissions standards is pending before Supreme Court Chief Justice John Roberts. That’s because the states say the D.C. Circuit Court of Appeals is sitting on a number of lawsuits without a decision, and that more time is needed before implementing a decision about technologies like carbon capture and storage. Roberts, having appeal jurisdiction over the D.C. Circuit on what is commonly referred to as the “shadow docket,” could deny the request, send it along to the full court, or issue a brief temporary stay while the matter is further briefed on an expedited schedule.

The appeal, led by Indiana Attorney General Todd Rokita and West Virginia Attorney General Patrick Morrisey, said that the EPA has overstepped its authority, taking away Congress’ power, as it mandates greenhouse gas regulations that are impossible to meet because the technology either currently doesn’t exist, or would be so cost prohibitive that it would make using coal impossible.

The appeal to the nation’s highest court also says that because of future pollution targets, energy companies need to make investment and permitting decisions in advance and that the EPA cannot meet those timelines itself, risking millions of sunken or lost costs for public utilities that would be passed along to consumers.

While not mentioning Montana’s Colstrip Units 3 and 4, the issues strike directly at the heart of the battle to keep the aging coal-fired plant in southern Montana open. The lawsuit said that the only way to keep such plants open is through carbon capture and storage, but that technology has never been proven on an industrial scale, and furthermore the limited tests require heavy subsidies.

Attorneys argue that if the Biden administration’s rule is allowed to continue, it will mean that hundreds of megawatts will be forced offline, leading to power shortages during critical weather during the summer and winter.

“Among other things, the rule imposes inadequately demonstrated technologies on unworkable timeframes, effectively squeezing plants into retirement,” the appeal said. “Relatedly, it causes serious immediate harms by either pushing plants into binding commitments for retirement or pressing them to start spending large sums to hit compliance dates.”

The rule would force 90% of carbon dioxide from the plants to be captured and stored by 2032 and 40% of the plants to establish co-firing with natural gas by 2030.

“(The rules) are really a backdoor avenue to forcing coal plants out of existence — a major question that no clear congressional authority permits. The rule cannot stand,” the legal brief said.