August 19, 2020

Environmental, Natural Resources, & Energy Law Blog

US Regulatory Rollbacks on Coal - Daphne Saul

US Regulatory Rollbacks on Coal

By Daphne Saul MSL Student

  1. Introduction

This is an introduction to a segment of contemporary environmental justice, with a focus on regulatory rollbacks in US coal production facilities. Among the 95 environmental rollbacks under the American Clean Energy rule (ACE), it would repeal an Obama-era regulation requiring new coal plants to use carbon capture technology, and 11 other regulations on coal pollution.1 This proposed rollback effects new carbon capture and storage systems and new coal plants. Forgoing coal pollution protections will have disastrous effects on future generations, especially the surrounding at-risk communities. Despite the coal industry insisting that the Obama-era Clean Power Plan (CPP) weighed down the industry. As a global leader the US should be phasing out all coal energy as soon as possible and transitioning to clean renewable energy, in accordance with international climate action goals, despite withdrawal from the Paris Agreement. Combined with health care and financial service regulation rollbacks,2 the burden falls on the most at-risk populations. The following contains a background of the proposed rollbacks on coal carbon capture technologies, an analysis of the consequences of forgoing CO2 reduction technology for coal in new facilities, and an analysis of the legal basis of the effort to roll back pollution standards for coal.

Many pollutants besides CO2 are released when coal is burned, such as, mercury, particulates, nitrogen oxide, sulfur, heavy metals, and lead, 3 damaging surrounding communities, and polluting the air, water, and soil of nearby areas. CO2 may be the main driver of climate change and focus in international goals like the Paris Agreement (2020 and 2050 peak CO2 goals), but the real cost of burning coal is in the nearby communities by which they operate, especially as still not listed as hazardous under the EPA.4 The process of making a “clean coal” plant involves many practices that attempt to lessen the amount of various types of pollutants that come from burning coal. 5 Specifically, a proposed rollback effects the technologies to limit the release of CO2 and other greenhouse gasses (GHGs), while another weakens a legal justification to limit mercury emissions.6

  1. Consequences

From 2008 to 2018, the number of operating coal power plants has decreased by nearly half.7 Consequently, half of coal-fired power plants are unprofitable due to global market forces aimed to shift to cheaper, sustainable energy.8 With this steady decline in coal power operation throughout the country during a critical time in climate action, it is imperative to continue this path towards carbon neutrality. About 130 million tons of coal ash is produced every year in the US.9 Globally, most coal power plants are situated near the poorest and yet are not designed to benefit the poor especially in rural areas where it would be costly to put up power lines to connect to them. 10 Implications for future generations include this increased pollution with CO2 levels from the lack of proper installation of available technologies. Dangers of unregulated coal production span from lung-damaging particulates and smog in the air, to cancers from heavy metal in contaminated drinking water, and even explosions from unlined toxic coal ash ponds such as the 2008 disaster in Kingston, Tennessee which wiped out a vulnerable neighborhood.11

Another implication is a time-bomb for the coal power industry. Rolling back on requirements to have Best Available Control Technology (BACT) will set a dangerous precedent for the coal industry. If the coal industry does not invest now in carbon capture technology, then the carbon tax will be more expensive later. According to The United States Mid-Century Strategy for Deep Decarbonization, a carbon tax should start at $20 a metric ton and increase over time.12 This would mean that new facilities forgoing carbon capture technology in infancy due to the high upfront cost would end up paying much more later in the form of carbon taxes.

The Affordable Clean Energy rule (ACE) has replaced Clean Power Plan (CPP) from the Obama era.13 ACE focuses narrowly on coal production, leaving the gate wide open for unregulated coal pollution.14 This pollution is now alarmingly unregulated given current circumstances since March 2020. EPA’s announcement of retroactive removal of fines for environmental violations from facilities from March 13 onwards, 15 will likely have detrimental effects, especially for at-risk communities that neighbor such polluting facilities. President Gina McCarthy of the National Environmental Defense Council (NRDC) coined this directive “an open license to pollute,”16 for facilities during the COVID-19 epidemic.

  1. Legal Aspects

ACE has many flaws. The rigid framework that ACE creates does not allow for the necessary decarbonization in the energy sector, specifically, according to data from EPA’s Regulatory Impact Analysis, ACE is expected to reduce the country’s CO2 emissions a mere 0.1 percent from 2021 to 2050, while imposing new regulatory costs on the sector.17 Additionally, under ACE, new coal plants do not have to adopt carbon capture technology. As this is a theoretical issue due to the low possibility of new coal plant construction, it is still an issue if new coal plants are built without the proper protections from coal ash installed which neighbor at-risk communities.

The Statutes concerning coal carbon capture technologies are covered under the Clean Air Act, 69 Stat. 322, as amended, 42 U.S.C. section 7401-7671q. The 1990 statute about clean coal technology regulatory incentives, 42 U.S. Code § 7651n, says that clean coal technology demonstrations are appropriated $2,500,000,000, as an incentive to test out better technologies.18 The regulation affected by the rollback was created during the Obama administration and would limit “carbon dioxide emissions from new power plants to 1,000 pounds per megawatt-hour.”19

After Massachusetts v. EPA, when GHGs were added to the list of air pollutants, EPA decided to require stationary sources (e.g. power plants) that were subject to Prevention of Significant Deterioration (PSD) [stationary sources that emit more than de minimis amounts of air pollutants] to use the best available control technology (BACT) for greenhouse gases that they emitted.20 This decision to have the requirement for subject facilities has been reviewed in Utility Air Regulatory Group v. E.P.A. (2014) to be a “permissible interpretation of [the] Act.” This means that coal plants that release more than an undetectable level of any air pollutant must use BACT, or the best technology that has been invented thus far to control the release of any specific air pollutant.

If what is proposed ends up happening or letting coal power plants emit more than 1,000 pounds of CO2 per mega-watt hour as mentioned above, then the best course of action is to challenge the rollback through the judicial branch. A similar case is one challenging a former E.P.A. administrator, Scott Pruitt’s, decision regarding removal of protections against the dangerous GHG called hydrofluorocarbons (HFCs).21 This could also happen with protections on Mercury, where the Trump administration sees that the health benefits of Mercury protections is $6 million ($6,000,000) annually, conversely the Obama administration saw health benefits equating $80 billion ($80,000,000,000) annually.22 That difference shows how much the Trump administration disvalues the health of American people, and how much needs to be done to ensure that at-risk communities are protected at all costs.

  1. Suggestions

  Here are suggestions for future regulations that have at-risk communities in mind. A future administration should add all hazardous substances to the hazardous substance list without unnecessary delays so that they can be cleaned up at a reasonable time under statutes and challenged effectively in courts by effected parties that are privileged enough to have a voice to appear in court. The future administration should also limit all pollutants as much as possible, much like the CPP did before it was replaced with ACE. This includes reinstating rules that double-check facility’s pollution capabilities, and rules that re-enforce proper containment of toxic production waste from coal energy plant production.

  1. Conclusion

In summary, rolling back regulations that require carbon capture technology in new coal plants and other coal pollution protections will have major implications for surrounding communities and future generations. Among many of the Trump administration rollbacks on environmental regulations, some are still in the proposal stage and can be halted. If new coal power plants can burn coal without sequestration technologies in place, this will negatively influence future generations and low-income communities, and reduce industry motivation to create readily available carbon sequestration technology. The Trump administration EPA can legally repeal the regulations to require coal power plants to use pollution protection technology, but it is not in the best long-term interests of the facilities, the nation, and the globe. The decision will be best if challenged similarly to the HFC case against Scott Pruitt’s guidance. Once again, restating the key take-aways, this is just one of many other environmental transgressions the Trump administration has committed in the form of rollbacks. On a final note, please remember that public participation is the largest driving force in environmental policy and every voice and opinion matters in making a difference in which laws get made. Keep a look-out for regulations that spring up out of unpublished documents, because not all of them must be public as per administrative law informal rules. Also look in the federal register and comment during the notice period on any formal rulemakings published there to give a voice to environmental concerns on this regulation and many others like it.

Figure 1.0

A Graph of US Coal Plants From 2008-2018. | Graph by D. Saul | Data Source


7 43.812% (See Figure 1.0).

20 Utility Air Regulatory Group v. E.P.A., 573 U.S. 302 (U.S., 2014)