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May 30, 2024

Dear Members of Congress, 

The Environmental Protection Agency’s (EPA) recently finalized powerplant rule will kill America’s existing supply of baseload generation from coal. At the same time, the rule will deter investment in new baseload generation from natural gas. That means the rule will drive up consumer energy costs, impair grid reliability, and chill economic growth. The rule is also an unlawful power grab that defies the Supreme Court’s decision in West Virginia v. EPA.  

Sen. Shelley Moore Capito (R-WV) and Rep. Troy Balderson (R-OH) are expected to introduce Congressional Review Act resolutions of disapproval to overturn the EPA’s rule. We, the undersigned organizations, urge you to support those resolutions.  

The EPA’s rule sets various requirements that will quickly drive coal generation out of the nation’s electricity fuel mix. If a coal powerplant intends to produce power after 2039, it must, by January 1, 2032, install equipment capable of capturing 90-percent of its carbon dioxide (CO2) emissions. Carbon capture is an energy- and water-intensive system that adds significantly to power generation costs. Moreover, carbon capture powerplants do not reduce emissions unless connected to networks of CO2 pipelines and storage facilities that may never be built.  

Unsurprisingly, despite decades of R&D and billions of dollars in ratepayer and taxpayer subsidies, only two carbon capture powerplants currently operate in North America—Petra Nova in Texas, and Boundary Dam in Saskatchewan. Both were built with hefty subsidies and plagued with technical difficulties. Note, too, that central to the business model of each project is a partnership whereby the powerplant sells its captured CO2 to companies engaged in enhanced oil recovery (EOR). Thirty-eight states (more than three-quarters) do not have EOR operations.  

PJM Interconnection, the regional transmission organization that coordinates wholesale electricity and manages grid reliability in all or parts of 13 states and the District of Columbia, observes in its statement on the rule: “There is very little evidence, other than some limited CCS [carbon capture and storage] projects, that this technology and associated transportation infrastructure would be widely available throughout the country in time to meet the compliance deadlines under the Rule.”    

The bottom line is that, for coal powerplants, 90-percent carbon capture is not an “adequately demonstrated” “best system of emission reduction” (BSER), taking “cost” and “energy requirements” into account, and thus is not a lawful basis for setting emission standards under Section 111 of the Clean Air Act (CAA).  

The EPA’s rule provides two alternative compliance options. A coal powerplant can avoid the expense of installing a carbon capture system if it (a) commits to shut down by January 1, 2032, or (b) commits to shut down by December 31, 2039, and repowers with 40 percent natural gas by January 1, 2030. PJM Interconnection cautions:  

The present gas pipeline system is largely fully subscribed. Moreover, given local opposition, it has proven extremely difficult to site new pipelines just to meet today’s needs, let alone a significantly increased need for natural gas in the future. The Final Rule, which is premised, in part, on the availability of natural gas for co-firing or full conversion, does not sufficiently take into account these limitations on the development of new pipeline infrastructure. 

It could not be clearer that the rule aims to drive coal generation out of U.S. electricity markets. Indeed, the EPA itself estimates that, by 2045, coal generation will decline by 94 percent compared to the prior policy baseline (Regulatory Impact Analysis, Table D-10).  

As in the Clean Power Plan, the EPA is promulgating “emission performance standards” that are, in fact, non-performance mandates. ‘Perform less or not at all’ is not a valid performance standard under CAA Section 111. 

The EPA’s new rule also establishes a 90-percent carbon capture requirement for new baseload natural gas powerplants. Far from being “adequately demonstrated,” no utility scale natural gas CCS plant exists today. Only one small-scale facility was ever built—Florida Power & Light’s 40 MW CCS gas plant in Bellingham, Massachusetts. It closed in 2005. That is nowhere near an adequate technological basis on which to predicate an industry-wide 90 percent carbon capture requirement.   

The EPA could not have picked a worse time to attack affordable, reliable, coal- and gas-fired generation. Electricity demand is projected to grow substantially due to the proliferation of data centers, expansion of Artificial Intelligence, onshoring of chip production, and the EPA’s and California’s policies to forcibly electrify U.S. motor vehicle fleets.    

PJM Interconnection warns: “The future demand for electricity cannot be met simply through renewables given their intermittent nature. Yet in the very years when we are projecting significant increases in the demand for electricity, the Final Rule may work to drive premature retirement of coal units that provide essential reliability services and dissuade new gas resources from coming online.”   

In West Virginia v. EPA, the Supreme Court made it clear that CAA Section 111 does not authorize the EPA to act as the nation’s grid manager or resolve the national debate on climate policy with respect to a fundamental industrial sector. If Congress wanted the agency to possess such authority, it would have said so in clear terms. Congress has not done so, yet the EPA is still trying to assert an expansive transformation of its regulatory power. As in the CPP, the EPA ignores the separation of powers that is vital to the nation’s republican form of government.  
For those reasons, our organizations urge legislators to overturn this rule.

Daren Bakst 
Director, Center for Energy and Environment 
Competitive Enterprise Institute 

James L. Martin  
60 Plus Association 

Lisa B. Nelson  
Chief Executive Officer  
ALEC Action 

John Droz  
Alliance for Wise Energy Decisions (AWED) 

Thomas H. Jones  
American Accountability Foundation Action

Saulius “Saul” Anuzis 
The American Association of Senior Citizens  

Phil Kerpen 
American Commitment  

Steve Pociask  
President & CEO  
The American Consumer Institute  

Hon. Jason A. Isaac 
American Energy Institute 

Margaret Byfield  
Executive Director  
American Stewards of Liberty 

Richard Manning 
Americans for Limited Government 

Brent Gardner 
Chief Government Affairs Officer 
Americans for Prosperity  

Grover Norquist 
Americans for Tax Reform 

David T. Stevenson  
Director of the Center for Energy & Environment 
Caesar Rodney Institute 

Ryan Ellis  
Center for a Free Economy 

Daniel J. Mitchell   
Center for Freedom and Prosperity 

Jeffrey Mazzella 
Center for Individual Freedom 

John Hinderaker 
Center of the American Experiment 

André Béliveau            
Senior Manager of Energy Policy 
Commonwealth Foundation 

Matthew Kandrach  
Consumer Action for a Strong Economy 

E. Calvin Beisner 
Cornwall Alliance for the Stewardship of Creation 

Craig Richardson 
Energy & Environment Legal Institute (E&E Legal) 

George Landrith
Frontiers of Freedom

Cameron Sholty 
Executive Director 
Heartland Impact 

James Taylor 
The Heartland Institute 

Mario H. Lopez 
Hispanic Leadership Fund  

Carrie Lukas 
Independent Women’s Forum 

Heather Higgins 
Independent Women’s Voice 

Thomas J. Pyle
Institute for Energy Research

Andrew Langer 
Institute for Liberty 

Tom Harris, B. Eng., M. Eng. (Mech.)  
Executive Director  
International Climate Science Coalition (ICSC) 

Annette Olson
Chief Executive Officer
The John K. MacIver Institute for Public Policy

Jon Sanders 
Director of the Center for Food, Power, and Life 
John Locke Foundation 

Seton Motley 
Less Government  

Charles Sauer  
Market Institute 

Daniel C. Turner  
Founder & Executive Director  
Power the Future 

Paul Gessing 
Rio Grande Foundation 

Bette Grande 
CEO and President 
Roughrider Policy Center 

James E. Enstrom 
Scientific Integrity Institute

Karen Kerrigan 
President & CEO 
Small Business & Entrepreneurship Council 

David Williams 
Taxpayers Protection Alliance 

Derrick Max 
President and CEO
Thomas Jefferson Institute for Public Policy 

Frank Lasee 
Truth in Energy and Climate 

Kathleen Sgamma 
Western Energy Alliance 

Benjamin Zycher 
Senior Fellow 
American Enterprise Institute