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Power Companies Back EPA Climate Authority

Companies urge the Supreme Court to uphold EPA’s authority to broadly regulate how they produce electricity for the nation.

According to E&E News, Consolidated Edison Inc., Exelon Corp., National Grid USA and other firms expressed their support for EPA to require the sector to cut emissions using a range of approaches that look beyond technical controls at individual facilities.

“Power companies, including the Power Company Respondents, favor emission-reduction approaches that allow for trading because these market-driven approaches enable the greatest emission reduction at the lowest cost,” the companies wrote in a brief docketed yesterday in the case West Virginia v. EPA.

The companies — which provide power to about 40 million Americans — had opposed Supreme Court review of the challenge launched by coal companies and Republican-led states that asked the justices to limit EPA’s options to regulate emissions under the Clean Air Act.

In a stunning move, the court last year agreed to take up the case, which focuses on a federal rule that does not currently exist.

The landmark case, set for arguments on Feb. 28, could impede the Biden administration’s efforts to decarbonize the power sector and handcuff federal agencies’ authority to issue broad regulations (Energywire, Nov. 1, 2021).

Red states and coal companies have argued that the “best system of emission reduction” for existing sources should be read much more narrowly than the approach the U.S. Court of Appeals for the District of Columbia Circuit upheld last year when it struck down a Trump-era rule that had gutted the Obama administration’s Clean Power Plan.

Instead of allowing approaches like generation shifting from coal to renewable sources, the Republican states and coal firms argue, EPA should be restricted to emissions reductions at the facility level, or “inside the fenceline.”

While the challengers’ arguments center on a regulatory approach adopted by the Obama team in the Clean Power Plan, the power companies pointed out in their brief yesterday that the 2015 rule had never gone into effect and that the Biden administration does not plan to revive it.

Biden’s EPA has said it plans to issue a proposed carbon rule this summer, which is around the same time the Supreme Court is expected to hand down its ruling in West Virginia v. EPA.

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Power companies back EPA climate authority at Supreme Court

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