Principal Eric Christensen (Seattle) was quoted in an S&P Global article titled “US Supreme Court ruling may pave way for cofiring, CCS at coal-fired power plants.” The article discussed the future of greenhouse gas (GHG) emissions regulations, especially in the electric power sector, following the recent Supreme Court Ruling in West Virginia v. EPA, 597 U.S. __, 2022 WL 2347278 (June 30, 2022).

Eric said that carbon capture and storage (CCS), or co-firing, a method of burning two different types of fuel at once, may now be considered best system of emissions reductions (BSER), so long as the U.S. Environmental Protection Agency (EPA) “can prove they are technologically viable.”

"These are 'inside the fence line' measures that fit within the BSER rubric as defined by the court on Thursday, but, under 111d, EPA would still have to demonstrate that the systems are the best system of emissions reductions that are 'adequately demonstrated,'" Eric said.

"Given the current state of technology for carbon capture," Eric added, "that is a pretty high hurdle. I think EPA might have a better shot with co-firing using biomass or natural gas."

Later, Eric said that he was doubtful that a trading program would follow the ruling. "It is hard to see how a carbon cap-and-trade program could survive under any other provisions of the Clean Air Act given the logic of the decision, especially the court's reliance on the fact that [US] Congress rejected a carbon cap-and-trade system when it rejected the Waxman-Markey [legislation]," he said.

For more on the implications of the West Virginia v. EPA decision, or any other aspect of air and climate change regulatory and transactional developments, including litigation challenges, evolving SEC climate disclosure rules, CCS and the Section 45Q tax credit, or international developments, please contact any member of B&D’s Air & Climate Change or Litigation practices.