Will EPA Keep Carbon Capture in Its New Power Plant Rule?

If U.S. EPA releases its final plans to cut carbon from power plants on Monday, as expected, the biggest shock might not be found in the Clean Power Plan.

There have been rumblings for more than a month now that the New Source Performance Standard for future power plants under consideration at the White House does not contain what was the centerpiece of the draft version:  a mandate that all future coal-fired power plants use carbon capture and storage (CCS) technology to capture a share of their emissions.

EPA has been tight-lipped about its power plant carbon regime, which is now expected to be unveiled Monday morning at the White House.  But sources on Capitol Hill and elsewhere say they have heard from agency staff that the CCS mandate is out -- likely replaced with a less stringent requirement that new coal plants use ultra-supercritical technology.

Some observers say they have heard mixed chatter from certain administration officials about what is in and what is out.  But the uncertainty raises questions about what serves the Obama administration's climate change legacy more:  ensuring that no future coal-fired power plant can ever be built without CCS, or protecting the Clean Power Plan, which covers all the fossil fuel power plants currently belching carbon into the atmosphere throughout the United States.

That question rests on how legally stable the New Source Performance Standard is, which is a matter of hot debate.

If the new power plant rule is invalidated in courts, there is a strong likelihood the Clean Power Plan will fall with it, undermining the whole of EPA's power plant carbon regime and the cornerstone of what the U.S. had to offer toward a potential global emissions deal this year in Paris.  The Clean Air Act requires that a standard for new sources be in place before a standard for existing ones goes into effect, and while the agency argues in its rule that a separate standard for modified sources might serve that purpose, that claim is untested and many experts say it is unlikely to pass muster.

The best chance for the survival of any of EPA's three power plant rules is therefore the survival of all its power plant rules.  And that's a legal judgment call, said Thomas Lorenzen, an attorney at Crowell & Moring LLP.

"Right now there are some people at EPA and at the Department of Justice that are engaged in a little bit of gambling, and they're trying to decide which way is the best way to play this," he said.

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