WestLaw Today 8/7/2024
The U.S. Environmental Protection Agency overstepped its Clean Air Act authority by requiring certain fossil fuel-fired power plants to implement unproven technologies for reducing carbon dioxide emissions, according to the U.S. Chamber of Commerce.
West Virginia et al. v. U.S. Environmental Protection Agency et al., Nos. 24A95, 24A96, 24A97, 24A98, 24A106 and 24A116, amicus curiae brief filed (U.S. Aug. 5, 2024).
In its Aug. 5 amicus curiae brief, the Chamber says the U.S. Supreme Court should grant a request by West Virginia and 24 other states to stay the new EPA requirements while court challenges proceed.
Carbon capture requirements
In 2015 the EPA released its Clean Power Plan, which aimed to combat climate change by incentivizing a shift from coal- and natural gas-fired power plants toward renewables such as solar and wind to reduce carbon dioxide emissions.
The EPA relied on its authority under Section 111 of the CAA, 42 U.S.C.A. ยง 7411, to implement the "best system of emission reduction" for power plants.
The Supreme Court declared the plan unlawful under the "major questions" doctrine in West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022), saying that Section 111 did not broadly authorize the EPA to shift electricity production to cleaner sources as part of its efforts to limit emissions.
Following the Supreme Court's decision, the EPA issued a rule requiring certain existing coal-fired power plants and new natural gas plants to implement systems by 2032 to capture and sequester 90% of their carbon emissions.
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