Amidst the flurry of recent U.S. Supreme Court decisions, the court settled a case against the Environmental Protection Agency that will impact how emissions from Georgia power plants can be regulated.
In a blow to the federal agency’s ability to regulate greenhouse gas emissions, the court decided 6-3 in West Virginia v. EPA that the federal agency can’t create emissions caps on utilities based on the shifting to renewables. That approach was championed by the Clean Power Plan, which made emissions-lowering goals for states.
The decision doesn’t strip the EPA of its ability to regulate emissions. Instead, the decision requires the EPA to demonstrate Congress has charged it to act.
Even without the EPA enforcing an Obama-era rule dubbed the Clean Power Plan, the free market of power companies saw many utilities meet and exceed emissions goals anyway.
Impact on Georgia
Georgia Power, like many other energy companies, has already started decommissioning many of its higher-emissions coal plants throughout the state.
Georgia Power spokesman John Kraft said the utility has reduced its carbon emissions by 60% since 2007 and is on track to shutter all its coal units by 2028 aside from Plant Bowen. By 2035, the utility plans to retire all of its coal-fired plants.
Some of those coal plants have already closed their doors. In Effingham County, the coal unit at Georgia Power’s McIntosh facility hasn’t been active since 2016 and was officially closed in 2019.
Twenty years ago, Kraft said, coal plants supplied 75% of Georgia Power’s energy generation, and in 2021, that decreased to 15%.
Currently, according to Kraft, Georgia Power’s generation capacity mix — the breakdown of what it can produce when all systems are producing their maximum — is 21% coal, 42% gas, 11% solar/storage and 5% hydro, with biomass, wind and oil together totaling 6%.
Looking toward the future, the utility’s latest Integrated Resource Plan, its resource management strategy for the next two decades, is looking to have a generation capacity mix of 8% coal, 34% gas, 13% nuclear, 32% solar/storage and 5% hydro, with biomass, wind and oil totaling 5% by 2030.
What is the Clean Power Plan?
West Virginia v. EPA has its origins in the Clean Power Plan, said Frank Rambo, a senior attorney and leader of the Southern Environmental Law Center’s Clean Energy and Air Program.
Using its ability to regulate greenhouse gas emissions, the EPA made a rule establishing a goal for lowering emissions for states to meet. Like all rules, Rambo said, there was a lag time where states had a few years to make plans and arrangements on how best to apply the rule.
Before states even started coming up with their plans, the Supreme Court stepped in and stayed the Clean Power Plan, putting it off until the court could address some concerns it had about the EPA’s authority to enact such a plan.
Since then, the Trump administration repealed the plan and replaced it with the Affordable Clean Energy Rule, which would regulate individual power plants’ emissions. According to Rambo, this rule had much less stringent limits on greenhouse gas emissions.
From there is where the battle between the two policies made its way to the Supreme Court.
In its decision, the court invoked the “major questions doctrine,” which is based on a policy’s potential to have “a transformative impact on the whole American economic, social, political landscape” since the EPA’s policy could restructure the power sector, Rambo said.
Rambo said the court found the wording in the statute the EPA used to have authority to enact the Clean Power Plan was vague. He said they characterized the EPA’s use of it as a little-used backwater part of the statute, really inconsequential stuck-in-the-back-of-the-attic type statute.”
Consequences
When making new regulations or for some actions, Rambo said the agency will have to pause and assess legal vulnerability, and think about whether it needs approval from Congress.
In the case of power plant emissions, Rambo said the party’s not over yet.
“The Biden EPA has said in court, ‘We’re looking at this. We’re going to come up with our own proposal that is not going to be the Clean Power Plan, and it’s not going to be the ACE rule either,” Rambo said.
With the Biden administration EPA still planning its own version of a greenhouse gas emissions regulation, Rambo said it’s odd the Supreme Court decided to take up the case before the agency finished its planning.
The Biden EPA can’t take the system-wide approach to emissions due to the Supreme Court decision, which means it will probably have less stringent requirements for power companies.
Marisa Mecke is an environmental journalist. She can be reached at mmecke@gannett.com or by phone at (912) 328-4411.
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