Supreme Court lets Biden’s power plant climate rule take effect

President Joe Biden’s contentious climate rule for power plants will take effect after the Supreme Court declined on Wednesday to block the regulation that is a core part of the administration's efforts to strip greenhouse gases from electricity grid.

Opponents of the Biden administration’s environmental agenda in the power sector and in Republican-led states had hoped to replicate a June victory in which they convinced the Supreme Court to block a separate Environmental Protection Agency rule targeting other types of power plant pollution that floats across state lines.

But on Wednesday, the high court rejected those calls — echoing similar decisions in early October when it declined to stay a rule limiting mercury and other air toxics from coal-fired power plants and a separate regulation imposing sweeping methane reduction requirements on the oil and gas industry. Litigation against all three rules is proceeding in a lower court.

The Supreme Court’s decision elevates the issue of climate change just weeks before the presidential election. Vice President Kamala Harris has promised to pursue a robust climate agenda, a sharp contrast to former President Donald Trump's vow to roll back Biden's regulations and boost fossil fuel use.

The rule's opponents said despite the high court's rejection, the effort to block limits on carbon dioxide pollution from power plants would continue.

“This is not the end of this case,” West Virginia Attorney General Patrick Morrisey, who is leading the legal charge against EPA’s rule, said in a statement. “We will continue to fight through the merits phase and prove this rule strips the states of important discretion while forcing plants to use technologies that don’t work in the real world.”

Alex Bond, the executive director for clean energy and environment at the utility lobby group Edison Electric Institute, said in a statement his group is "disappointed" with the outcome and will push their case before the D.C. Circuit.

“While EEI’s member electric companies are investing in carbon capture and storage and are excited by its potential, the current reality is that this technology has yet to be adequately demonstrated as required by the Clean Air Act,” Bond added.

EPA spokesperson Nick Conger said in a statement the agency is “pleased” with the decision.

“We look forward to implementing this rule, which is based on proven and cost-effective control technologies, to secure up to $370 billion in climate and public health net benefits over the next two decades,” he added.

Environmentalists also cheered the ruling, particularly in the wake of several high-profile hits to EPA rules from the conservative Supreme Court.

“Given its rulings in recent years undercutting environmental protections, the refusal of the majority on the Supreme Court to block this vital rule is a victory for common sense,” Meredith Hankins, a senior attorney at the Natural Resources Defense Council, said in a statement. “This warrants a sigh of relief from the millions of Americans experiencing the impact of the climate crisis.”

The rule issued by EPA earlier this year, Reg. 2060-AV09, requires coal-fired power plants to reduce their emissions of carbon dioxide by 90 percent if they plan to continue to operate past 2039, and even more stringent requirements for newly built natural gas-fired power plants. The only known technology capable of that level of reduction is carbon capture and sequestration, but it has not yet been deployed at such levels.

Republican-controlled states, along with a wide swath of the utility and coal sectors, quickly challenged the rule.

Carbon capture technology is promising, they argued, but it is not economically or technologically ready for broad application at most of the nation's roughly 200 coal plants. They also raised concerns about the infrastructure that would be necessary at most plants to pipe captured carbon to sites where it can be injected deep into the earth, a distance that could be hundreds of miles or more for some plants.

“By constructing a rule that offers power plant operators the choice of either employing technologies that do not yet exist on a commercial, affordable scale or shutting down, the EPA has wrested control of our nation’s energy policy with neither the legal authority nor expertise to do so, all at the exact time that electricity demand is forecast to double,” National Mining Association President and CEO Rich Nolan said in a statement. “If this rule is allowed to stand the results for the American people and economy will be catastrophic.”

A lower court in D.C. in July also declined to stay the rule .

That panel, which included one Trump-appointed judge, issued an unusual explanation of their decision, saying the challengers hadn’t shown they were likely to succeed in proving some key allegations. Those included contentions that EPA was wrong to base its standard on carbon capture technology and that the the rule violated the “major questions” doctrine — which the Supreme Court used in 2022 to effectively strike down the Obama-era Clean Power Plan, a previous iteration of the power plant regulation.

The Supreme Court followed that ruling with additional ones earlier this year that blocked an EPA plan to reduce interstate pollution that causes smog and gave judges greater ability to strike down regulations , raising further questions about whether EPA has any significant authority to limit carbon pollution from power plants, the nation’s second biggest source of the emissions driving climate change after the transportation sector.

But Wednesday’s order indicated that at least some of the conservative justices were placated by the fact that the D.C. Circuit has fast-tracked its consideration of the rule, which is likely to lead to a ruling from that court before serious compliance deadlines start arriving next summer.

Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, wrote in a note that he believes the challengers "have shown a strong likelihood of success on the merits as to at least some of their challenges." However, he continued, "because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D. C. Circuit decides the merits. So this Court understandably denies the stay applications for now."

Kavanaugh added that if the challengers lose at that level, they could then again "seek appropriate relief in this Court" — meaning ask the Supreme Court for relief while appealing the case.

Justice Clarence Thomas would have blocked EPA's rule, according to a short order issued by the court. His was the only noted dissent.

Justice Samuel Alito recused himself from the decision, according to the order. The court did not state why, although Alito’s most recent financial disclosure shows either he or his spouse hold stock in OGE Energy Corp., whose subsidiary Oklahoma Gas and Electric Company joined with the Edison Electric Institute in seeking to stay the rule, which would create a conflict of interest.

EPA originally proposed greenhouse gas limits for existing natural gas plants — the nation's top source of electricity — but decided to conduct an additional rulemaking for those sources that likely will take another one or two years.

This is the third effort by EPA to address greenhouse gas emissions from power plants, following the Obama administration’s Clean Power Plan and the Trump-era Affordable Clean Energy rule. The ACE rule was struck down by the D.C. Circuit on Trump’s last full day in office in 2021 because the agency had declined to consider certain regulatory possibilities, though that ruling was vacated when the Supreme Court restricted EPA’s authority over power plants in 2022.

Litigation will now continue in the D.C. Circuit.

“We’re confident these rules will ultimately be upheld and are pleased that rushed attempts to block them based on limited briefing have been rejected,” Frank Sturges, an attorney with the Clean Air Task Force, said in a statement.

The court previously fast-tracked the case, with briefing accelerated to finish on Nov. 1, raising the possibility of oral arguments as early as December. Any final ruling is all but guaranteed to be issued after the next president takes office.

If Donald Trump is elected in November, he may be able to pull the rule back before the D.C. Circuit issues a decision, as he did in 2017 when the court was reviewing the Clean Power Plan.