CLIMATEWIRE | The EPA’s latest proposal to cease regulation of climate emissions from power plants hinges on a controversial assertion that many experts believe could lead to legal complications.

The U.S. power industry ranks as the second-largest source of national emissions. However, in its preliminary proposal to rescind existing rules, the EPA contends that the sector’s contribution of greenhouse gases is too minor to justify regulation.

EPA Chief Lee Zeldin revealed on Wednesday plans to eliminate two key 2024 regulations for the power sector—one targeting climate pollution and the other mercury emissions. He criticized the Biden administration for implementing these measures primarily to phase out coal and natural gas facilities that provide steady base-load power.

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“These aren’t just unintended side effects; they are the direct targets of the Biden EPA’s actions,” Zeldin remarked to a group of journalists and sector representatives. He argued that the repeals would preserve fossil fuel operations and further President Donald Trump’s agenda for energy supremacy. Zeldin also noted that the proposals could undergo changes prior to their finalization, pending public feedback.

“We are keeping an open mind at the start of this proposal process and will make a final decision after reviewing all comments,” he explained during a response to a query from POLITICO’s E&E News.

If the EPA goes ahead with its plan to revoke these power plant regulations in their current form, experts predict the move could spark a slew of legal challenges. This section delves into the EPA’s legal reasoning and potential weak spots.

Rethinking the Clean Air Act

Under Section 111 of the Clean Air Act, used to manage carbon emissions from power plants, the EPA is required to determine whether a specific category of sources significantly contributes to harmful air pollution. Historically, since the 1970s, coal and gas-powered plants have been regulated for various pollutants under this provision.

The EPA has traditionally needed only one finding of significant contribution for each regulated sector, rather than distinct findings for each type of pollutant such as carbon. However, this latest proposal diverges from that approach.

“The EPA’s draft rule states that the Clean Air Act compels it to determine that emissions from fossil fuel-fired power plants significantly contribute to dangerous air pollution before it can regulate those emissions,” according to the proposal.

Jason Schwartz, legal director at the Institute for Policy Integrity at New York University Law School, mentioned that the statute clearly does not require pollutant-specific findings. Jeff Holmstead, former EPA Air Chief during George W. Bush’s presidency, countered by supporting the Trump EPA’s stance that a separate significant contribution finding is necessary for regulating a new pollutant from any sector.

“This issue is distinct from whether CO2 emissions from U.S. power plants significantly impact climate change and public health,” Holmstead added. “While courts might agree with EPA on the procedural issue, they could still challenge the agency’s assertion that power plants do not significantly affect climate change.”

Defining ‘Significant’ Pollution

Accounting for about a quarter of all U.S. greenhouse gas emissions and 3 percent of global emissions, the U.S. power sector is a major source of climate pollution, second only to transportation domestically.

It would be challenging for the EPA to argue that the U.S. power sector is not a significant emitter of greenhouse gases, stated Schwartz. The D.C. Circuit Court of Appeals ruled in American Lung Association v. EPA that power plants are indeed significant contributors to climate change, a decision that the Supreme Court chose not to review.

Meghan Greenfield, a former EPA and Justice Department attorney, critiqued the draft rule for not adequately addressing the D.C. Circuit’s decision. She also pointed out that the rule’s broader argument—suggesting that because U.S. power generation’s global CO2 emission share is minor and decreasing, it should not be deemed significant—deserves scrutiny.

“They are merging the question of whether the pollution is harmful with whether it is addressable,” Greenfield explained. “Their reasoning seems to be, ‘It’s too small to matter, and besides, there’s nothing we can do, so it’s not a problem.’ That’s my interpretation of their argument.”

Anticipated Legal Challenges

Environmental organizations made it clear they intend to legally challenge the EPA’s repeal efforts. “Disregarding the significant health risks from power plant pollution clearly violates the law,” stated Manish Bapna, president and CEO of the Natural Resources Defense Council. “Our legal team is ready, and should the EPA finalize this flawed repeal, we will meet them in court.”

To reverse a standing regulation, the EPA must demonstrate that its new stance is reasonable, which involves addressing all previous rationale for the rules, explained Ryan Maher, an attorney with the Center for Biological Diversity. Courts are generally skeptical when an agency reverses its previous positions, especially without reevaluating or applying the significance threshold.

“They are shifting the goalposts in a way that could essentially end regulation of greenhouse gases,” Maher said.

The EPA’s regulatory rollback announcement did not clarify whether the agency plans to revisit its 2009 endangerment finding for greenhouse gases, a goal that lost momentum during Trump’s first term.

Evaluating the Costs of Climate Change

The Biden administration’s carbon rule for power plants, which the EPA is now seeking to repeal, was backed by extensive modeling and analysis covering health, economic, and energy impacts, totaling 405 pages. However, the regulatory impact analysis released with the EPA’s draft rule is a mere 72 pages, lacking detailed evaluation of costs and benefits typically seen in significant rulemakings.

The draft rule notably omits any consideration of the costs associated with increased carbon emissions, briefly mentioning “significant uncertainties related to the monetization of greenhouse gases.” This aligns with directives from the Trump White House that discouraged agencies from using social cost metrics for greenhouse gases in their rulemakings.

Meredith Hankins, a senior attorney with NRDC, noted the stark lack of detailed analysis as a significant oversight. “Agencies are allowed to change their minds, but they must provide a reasoned explanation for their decisions, and cannot ignore key aspects of the issue,” she stated. “The scant technical analysis and complete absence of climate impacts in their cost-benefit analysis likely fail to meet basic administrative standards.”

Dena Adler, another senior attorney at the Institute for Policy Integrity, expressed doubts that the EPA could effectively argue that emissions from the U.S. power sector are insignificant. “It’s arbitrary for the EPA to dismiss the climate benefits of the 2024 rule as nonexistent,” Adler remarked. Even the first Trump administration recognized the significance of U.S. power sector emissions, she added.

Navigating the Legal Landscape

Richard Revesz, faculty director at the Institute for Policy Integrity, noted that the EPA’s proposed repeal is projected to result in greater costs than benefits. He criticized the new approach for deviating from decades of EPA practice, which considered the cumulative benefits of reducing emissions across different sources.

“The proposal essentially values greenhouse gas emissions at zero, which ignores the substantial economic damages they cause,” Revesz explained. “Courts have previously rejected analyses that undervalue or fail to account for the well-documented damages from greenhouse gases.”

Wednesday’s announcement is the latest development in an ongoing debate at the EPA over climate policies for the power sector. The Obama administration established the first carbon pollution limits for power plants in 2015, which were later blocked by the Supreme Court. The Trump administration’s replacement, termed the Affordable Clean Energy rule, was subsequently repealed by the Biden administration, which introduced its own regulations now under scrutiny.

The Biden rules were challenged by Republican-led states and industry groups. The U.S. Court of Appeals for the District of Columbia Circuit heard arguments in December but paused deliberations following a request from the Trump administration. Critics argue that the rule relies too heavily on carbon capture and storage technology, which they claim is not sufficiently advanced for the scale proposed by the rule, and that the EPA exceeded its regulatory authority.

The Biden EPA defended the regulation, arguing that it falls within the agency’s traditional authority to regulate pollution at its source.

This story also appears in Energywire.

Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2025. E&E News provides essential news for energy and environment professionals.