by Nick Pope
Several state attorneys general are engaging in legal battles against President Joe Biden’s Environmental Protection Agency (EPA) to determine whether or not his administration will be able to impose its costly plan for implementing a regulation designed to further incapacitate the American coal industry.
Multiple states have already achieved early success in their legal challenges against the EPA’s federal implementation plan (FIP) for meeting ambient ozone standards of the 2015 National Ambient Air Quality Standards (NAAQS), the implementation of which could further restrict coal-fired power generation in 22 states, according to the FIP’s Federal Registry entry. Numerous state attorneys general are seeking to follow their own state implementation plans (SIPs) rather than the comparatively restrictive FIP the EPA wants to impose in order to have the states meet the ambient ozone standards.
“President Biden doesn’t care if his radical agenda undermines our economy. His EPA’s reckless regulation will wreak havoc in the Commonwealth, forcing the shutdown of many of Kentucky’s coal-fired power plants—killing jobs and raising utility rates for Kentuckians—while further undermining American energy independence,” Republican Kentucky Attorney General David Cameron said to the Daily Caller News Foundation. Kentucky’s challenge has so far resulted in a stay against the EPA’s disapproval of its SIP, a spokesperson from Cameron’s office told the DCNF.
Full compliance with the EPA FIP could impose total annualized costs of $770 million and an overall cost of $9.4 billion over its duration, according to the FIP’s Federal Register entry.
The EPA’s proposed FIP is “meant to force more coal retirements” and “includes new elements that will make the rule increasingly onerous in future years,” Michelle Bloodworth, president and CEO of America’s Power, told the DCNF. Her organization “[estimates] that as much as one-fourth of the coal fleet is at risk of premature retirement because of the ozone transport rule.”
The EPA’s FIP would levy its costs by imposing a tight cap-and-trade system to reduce ozone precursor emissions commonly generated by coal-fired plants, according to the Federal Register entry. A cap-and-trade system sets an overall allowable limit of pollution, issues permits consistent with that amount and then allows the relevant companies to buy and sell the permits among themselves in a market, according to the Center for Climate and Energy Solutions.
The $9.4 billion price tag would fall primarily onto coal-fired plants that operate in the 22 affected states, with operators of surviving plants likely passing on a considerable portion of those costs to consumers, according to the International Energy Agency.
The EPA updated the ambient ozone NAAQS in 2015, which in turn automatically granted the impacted states a three-year window to submit their own SIP for attaining the new standards, according to the FIP’s Federal Register entry. The EPA then had to either approve or reject the proposed SIP within two years of receiving an SIP, before ultimately drafting and implementing an FIP if it deems a proposed SIP to be inadequate, according to the Federal Register entry.
After taking an extended time to draft their FIP, the EPA published the final rule for its implementation in early June, according to the Federal Register entry. As currently constructed, the final rule for the EPA FIP comes into effect on Aug. 4, 2023.
Numerous other states are fighting the FIP on similar grounds as Kentucky, arguing that EPA rejection of their respective SIPs in the first instance was unjustified by law and render the FIP illegal.
Arkansas is engaged in ongoing litigation against the EPA to stave off the FIP, and its challenge has so far resulted in an appellate court blocking the EPA’s rejection of its SIP, according to a spokesperson from the office of Republican Attorney General Tim Griffin. “The EPA cannot apply its one-size-fits-all federal implementation plan to Arkansas. … We will continue to fight EPA’s unlawful actions,” Griffin told the DCNF.
“We intend to continue defending Louisiana against the EPA’s unlawful assault on job creators who not only support our river-based communities and contribute to our economy, but also produce goods used across the nation,” Louisiana Solicitor General Liz Murrill told the DCNF. Louisiana’s ongoing challenge against the EPA FIP similarly asserts that the EPA unlawfully rejected its SIP in the first place, according to a spokesperson for the solicitor general’s office.
Republican Alabama Attorney General Steve Marshall and his team are also engaged in an ongoing legal challenge against the EPA’s FIP, according to a spokesperson for his office. “After initially indicating to Alabama that it was going to approve Alabama’s plan, EPA reversed course, unlawfully disapproved Alabama’s plan, and is now poised to impose on Alabama and many other states its own federal plan,” Marshall’s office told the DCNF.
Biden boasted that “you’re not going to see anybody building a new coal-fired plant in America” since future investments are now “too expensive” in a Wednesday speech in Chicago.
The Biden administration “should be focusing on job creation in America’s coal fields, but this rule throws any efforts towards that in the trash,” the United Mine Workers of America told the DCNF. The impacted “coalfield communities are significantly struggling economically, and yet they plan to close even more coal-fired power plants without a solid plan to replace the jobs that will be lost.”
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Nick Pope is a reporter at Daily Caller News Foundation.
Photo “Coal Mine” by Albert Hyseni.
