Biden begins crackdown on power plant pollution

Biden officials are kicking off a crackdown on power plant pollution, aiming to shift the nation’s electricity supply to cleaner energy in the face of congressional resistance and a Supreme Court that could limit the federal government’s ability to tighten public health standards.

On Monday, the Environmental Protection Agency will affirm its authority to curb mercury from smokestacks, reversing a 2020 Trump administration policy. The move signals a broader effort by the administration to cut greenhouse gases and other pollutants from U.S. power plants, which rank as the nation’s second-biggest contributor to global warming.

Biden has pledged to make the U.S. electricity sector carbon-neutral by 2035, but his deputies may have to rely on their existing federal authority now that Sen. Joe Manchin, D-West Virginia, has blocked the president’s plan to provide utilities with incentives to transition faster to clean energy. And in late February, the Supreme Court will hear arguments in a case brought by West Virginia that may undercut EPA’s ability to regulate greenhouse gas emissions from coal-fired power plants in the future.

But EPA can pressure the nation’s dirtiest coal plants to shut down through other means, and the administration is beginning to exercise its leverage.

“Regulations to require power producers to fully internalize the cost of their product are decades overdue,” said Thom Cmar, an attorney with the law firm AltmanNewman who represents environmental groups.

The agency will determine Monday that it is “appropriate and necessary” to limit mercury and other toxic air pollutants from power plants. Exposure to the heavy metal—which wafts into the air from coal plants and settles in lakes and streams and enters the human food chain after being absorbed by fish—can harm babies’ brain development in babies and cause heart disease in adults.

The proposed legal finding does not change a 2015 mercury control requirements adopted under Barack Obama, but it abolishes a Trump-era determination that these limits were unnecessary. And it lays the groundwork for tighten mercury controls in the future, which EPA is weighing later this year.

Environmental Defense Fund general counsel Vickie Patton said “it’s urgent” to update those standards, arguing that many coal plants still emit far too much mercury.

“Those standards, they’re out of date,” she said. “They need to be modernized to protect people from the most toxic contaminants that are discharged from coal plants.”

But to meet President Biden’s ambitious goal to decarbonize the power sector, his team must do much more.

EPA is crafting a new requirement to cut greenhouse gas emissions from existing fossil fuel plants, which would replace the Obama-era Clean Power Plan and which it plans to outline later this year. The Supreme Court blocked that rule from taking effect in 2016, and the U.S. Court of Appeals for the District of Columbia Circuit struck down Trump’s replacement rule a day before Biden took office.

But the agency will strain to craft a rule that can withstand scrutiny from an increasingly conservative Supreme Court. Now with three more Trump-appointed justices, the Supreme Court will hear a case in February brought by Republican-led states and the coal industry challenging the EPA’s authority to limit greenhouse gases from power plants.

The case is unusual since the federal government does not have a policy limiting power plants’ carbon dioxide emissions on the books.

“Normally the court would wait until they have a new rule to review,” said Carrie Jenks, executive director of Harvard Law School’s Environmental and Energy Law Program, adding that EPA officials “obviously have to see what the Supreme Court says. And the Supreme Court could say things that would change their timing.”

But West Virginia Attorney General Patrick Morrisey, who leads the lawsuit against the EPA, argues Congress has never given the federal officials the authority to transform the way utilities produce power in the first place.

“This is a really important case to the future of our republic because it raises a number of important questions,” he said in a recent interview. “Who do we want to make the nation’s most important, life-changing decisions? Do we want elected representatives who are accountable to the people? Or do we want unelected bureaucrats?”

Beyond capping greenhouse gas emissions, the Biden administration is taking other steps that, taken together, will make it more costly to burn coal and could hasten the closure of polluting power plants.

“All these hidden environmental and public health costs need to be brought back into the equation, so coal and gas aren’t getting a free ride,” said Jeremy Symons, an environmental consultant who co-wrote a 300-page blueprint in 2020 laying out how the EPA can avoid some of the pitfalls slowed down the Obama administration.

This fall, for instance, the EPA plans to propose a rule compelling many coal-fired plants to update filtration method that treat wastewater laced with arsenic, lead and other contaminants before reaching drinking water. The stricter requirements would undo one of the Trump administration’s major regulatory rollbacks.

The agency is also ramping up enforcement of another power plant rule that was relaxed under Trump: toxic coal ash disposal. About 500 unlined impoundments of waste from coal combustion threaten to leach contaminants like mercury, cadmium, and arsenic into nearby water.

On Jan. 11, the EPA denied requests from three power plants—in Indiana, Iowa and Ohio—to extend the use of ponds of coal ash. Some electric utilities have warned that stricter enforcement of coal-ash rule, which compels coal plants to dispose of the waste in lined pits to stop seepage, may trigger the early closure of coal plants.

“We think it’s just a matter of time” until there is a contamination problem, said Richard Hill, an activist who lives near the Clifty Creek Power Station on the Ohio River in Madison, Ind. “Eventually, there will be issues.”

EPA spokeswoman Lindsay Hamilton said the Biden administration is working to “identify the full range of our regulatory tools and consider how best to apply them to address the multipollutant impacts of the power sector.”

Over the past decade, the economics of running coal plants has become harder in the face of competition from cheaper gas-fired energy as well as wind turbines and solar farms.

Yet in pockets across the country, coal persists. One of the country’s top mercury emitters is North Dakota’s Coal Creek Station, according to an analysis by the Environmental Defense Fund. The plant was at the verge of shutting down when local officials rallied to save it by blocking competing wind and solar projects.

Overall, the pace of coal retirements actually slowed during Biden’s first year in office, according to U.S. Energy Information Administration, though that rate is expected to rise this year.