CEI warns EPA: Biden Blackout Plan is unauthorized, harmful, and unrealistic

In West Virginia v. EPA, the U.S. Supreme Court struck down the Obama administration’s Clean Power Plan, which was the Environmental Protection Agency’s (EPA) attempt to dictate the nation’s electricity generation mix.

A little over a year later, the Biden administration EPA has demonstrated that it hasn’t learned a thing. It has devised yet another scheme to effectively become the nation’s grid manager.

Yesterday, the Competitive Enterprise Institute submitted a detailed comment to the EPA, written by my colleague Marlo Lewis, which systematically goes after the rule.

The new rule is yet another attempt to kill off reliable electricity generation and force a shift towards unreliable electricity, such as solar and wind. If you don’t care whether the light turns on when you flick on the switch, then this rule might be for you.

But for most people, reliable electricity is rightfully expected. Therefore, they won’t be happy with the Biden Blackout Plan.  Here are some key points from the comment regarding the Blackout Plan:

• “The new plan is a more aggressive anti-coal market-restructuring program than the Clean Power Plan, aiming to reduce coal’s share of electric generation from 22 percent to 1.3 percent by 2042.”
  
  
• The EPA is once again asserting power of such magnitude and importance that it would be beyond what Congress could reasonably be understood to have granted to the agency. All of the problems that existed with the Clean Power Plan in West Virginia v. EPA connected to the major questions doctrine apply to the Blackout Plan.
  
  
• The EPA is giving coal and natural gas plants a choice: shut down or meet technological requirements that are so unrealistic that shutting down will still likely be their only option.  
  
  
• “Like the Clean Power Plan, the proposed rule is not regulating a business so much as directing it to close. If Congress wanted to authorize the EPA to ban businesses, it would have stated that clearly.”
  
  
• The agency is ignoring the cost to taxpayers from the subsidies that the agency relies upon to claim that carbon capture and storage technology is “adequately demonstrated” (a specific requirement in the law). The relevant statutory provision discusses examining cost in general, yet the agency improperly looks at cost for regulated sources only, and ignores these massive subsidy costs.
  
  
• The comment argues: “Is a control technology that enriches utilities but imposes billion-dollar costs on taxpayers ‘adequately demonstrated?’ The EPA apparently thinks so, and the Inflation Reduction Act is heavy with taxpayer-funded wealth transfers. We doubt, however, that the relevant statutory section [CAA section 111(a)] endorses the theory that taking cost into account excludes consideration of taxpayer cost, or confuses ‘adequately demonstrated’ with heavily subsidized.”
  
  
• In return for this radical agency plan, the averted rise in global warming would be too small a change for scientists to detect or people to experience. “Undetectable, non-experiential effects are ‘benefits’ in name only,” the comment says.
  

Here’s a key passage from the conclusion:

The proposed rule, like the Clean Power Plan, ignores the separation of powers that is vital to the nation’s republican form of government. If policymakers want to dictate how electricity is generated in this country or shut down certain types of businesses, then those are choices that Congress should make. And if Congress did want the EPA to exercise such power, common sense tells us that Congress’s authorization would be stated clearly.

Beyond the separation of powers problems and the major question implications, the EPA’s proposed rule fails to meet statutory requirements, including improperly considering costs, and improperly trying to adopt technological requirements that are not remotely close to being commercially viable or feasible across many parts of the country.

The comments have been submitted but this is just the start of what needs to be the fight against the Biden Blackout Plan. CEI will be helping to lead this fight.