Fossil power and carbon capture: A looming legal showdown

The Environmental Protection Agency (EPA) issued a rule earlier this year that some fossil-fuel fired power plants can use technology to limit dangerous pollution, including carbon dioxide – a greenhouse gas – and store it underground.

That conclusion, known as the power-plant rule, will be tested beginning on December 6 in the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit), when the court hears oral arguments that the technology—carbon capture and storage—has not been demonstrated to work in the manner that EPA requires.

In the past, the EPA has looked to other emissions-control technologies to set standards that have survived judicial review and, without a doubt, gone on to reduce dangerous pollutants. Whether the latest standards will also survive remains to be seen. Moreover, how the D.C. Circuit—the most important court for the resolution of environmental issues after the Supreme Court—responds to the arguments presented in this case, West Virginia v. U.S. Environmental Protection Agency, could have broader implications. After all, technological solutions to greenhouse gas reductions have long been considered a necessity to combat climate change.

Below, I explore some of the issues before the court and explain the broader implications of the case.

Greenhouse gases and carbon capture and storage

For decades, technological solutions have mitigated harms from pollution and resulted in cleaner air and water. Now, increased attention is being paid to technologies that may help combat climate change. One solution, carbon capture and storage (CCS), has its origins, in part, in a fossil fuel extraction technique known as enhanced oil recovery. First tried in Texas in 1972, this process uses carbon dioxide to push additional oil to the surface and has since become a common oil-recovery method. It also shows that carbon dioxide, the most abundant greenhouse gas, can be stored in geologic formations.

CCS builds on the lessons learned in oil fields. As applied to power plants, CCS removes carbon dioxide from the exhaust stream using chemical solvents. After the resulting mixture is heated, the absorbed carbon dioxide can be isolated and compressed for storage, generally via a pipeline to a permanent underground sequestration site.

The EPA rule at issue

The Clean Air Act of 1970 requires the EPA identify, in the words of the statute, the “best system of emission reduction” (BSER) that has been adequately demonstrated. In its power-plant rule now under review, the EPA concluded that for both the oldest coal-fired power plants and the newest natural gas-fired power plants, CCS—specifically, CCS capable of capturing 90% of carbon dioxide emissions—is the best. The EPA determined that CCS is an available and cost-effective technology that can be applied directly to power plants and yield substantial emissions reductions. EPA’s finding is based on lengthy study of CCS and its development over time. And under the EPA’s regulatory impact analysis, implementation of the rule should provide about $20 billion in annual health and climate benefits, while cutting carbon dioxide emissions by more than 120 million tons by 2035. The EPA estimates cost to industry at about $1 billion annually.

The CCS controversy and why it matters

EPA’s finding is strongly contested by some states, industries, and utility groups. The groups contend, among other things, that CCS technology has not been adequately demonstrated, that it cannot achieve at scale 90% capture of carbon dioxide from power plants, and that it is not cost effective. The opponents argue, as set forth in a request for emergency relief rejected by the Supreme Court in October, that because this technology has yet to be deployed at the scale EPA’s rule requires, EPA erred in calling the technology adequately demonstrated.

The case now pending before the D.C. Circuit matters because if the court concludes that “adequately demonstrated” means already in use at scale, then the range of technologies available as the “best system of emission reduction” will be more constrained because many appropriate technologies may not have been previously deployed at scale. Moreover, such a finding is contrary to court precedent and longstanding past practice. 

A brief filed on behalf of Rachel Rothschild, a historian and law professor at the University of Michigan Law School, by the Emmett Environmental Law & Policy Clinic at Harvard Law School (which I direct) recounts an earlier history of the Clean Air Act. In the 1970s, the EPA determined that scrubber technologies should be deployed to control the emission of sulfur dioxide—a harmful air pollutant that contributes to the formation of acid rain.

Then, as now, industry alleged that scrubbers were not adequately demonstrated. At the time, EPA acknowledged that scrubber technology sometimes experienced glitches. But the agency’s lengthy record documenting the development and potential of the technology allowed the D.C. Circuit to conclude, in a seminal 1973 case, that the EPA had reasonably deemed the technology adequately demonstrated. The D.C. Circuit’s holding in that and a subsequent case allowed an important technological fix to the problem of acid rain.

Rothschild’s brief relies on historical and archival research to compare and contrast the development of sulfur-scrubber technologies and litigation surrounding EPA’s 1970s standards with the deployment of CCS technology described in EPA’s challenged power-plant rule. The brief explains that CCS is further along than the scrubber technologies of the 1970s, highlighting the robust record underlying EPA’s current rule and BSER determination. If the court agrees, it should easily uphold the EPA’s determination that the technology has been adequately demonstrated. If it does not, then EPA’s efforts to reduce greenhouse gas emissions—in this case, and in the future—could meaningfully be set back. Hence, the case is an important one.

One other note: The power-plant rule was promulgated by the Biden administration. Its fate under President-elect Trump is uncertain, but because the Trump administration can only repeal this rule through additional and time-consuming processes, it is likely that the D.C. Circuit will address the matter before the new administration can rescind the rule.

All perspectives expressed in the Harvard Climate Blog are those of the authors and not of Harvard University or the Salata Institute for Climate and Sustainability. Any errors are the authors’ own. The Harvard Climate Blog is edited by an interdisciplinary team of Harvard faculty.