Thread by @MichaelWWara

I really enjoyed this OpEd from two great people. Since neither of them is a lawyer, I want to add just one little piece to this discussion: NSPS.

https://twitter.com/oboylemm/status/1326948037244022784

Recall that the big deal climate reg in the power sector under Obama was the Clean Power Plan. This regulation of EXISTING power plants would have forced a coal to gas and renewable transition in the US over the next decade. It was legally risky then. Quite a bit riskier now.

Less noticed or remarked upon was the regulation of NEW coal fired power plants (called NSPS or 111(b) rule) that would have required carbon capture at all new coal plants. This rule was also challenged and also withdrawn and replaced by milquetoast under Trump.

This rule, while still risky, was on less shaky legal interpretive ground than the CPP. The reason is that courts tend to defer to agency judgments about when an emission control tech is "adequately demonstrated." So if EPA said CCS was adequately demonstrated, odds are they win.

Funny thing was that this rule, according to its regulatory impact statement, had no benefits and no costs. How could that be? Because by the time it issued, no-one in their right mind would build a coal plant in America.

The rule for new natural gas plants just required reasonably efficient CCGT (Class F turbines). Again, no-one in their right mind would fail to build a new CCGT without using at least a Class F turbine achieving ~59% efficiency. So again, no benefits and no costs.

But what if the @JoeBiden EPA proposed a different sort of rule for natural gas fired power plants - one that hewed more closely to the @BarackObama EPA rule for coal plants? More likely than not, it could survive review. It would for sure fundamentally alter utility planning.

CCGT with CCS is a technology that we understand how to do, and there are some innovative new technologies that may, in time make it competitive. But it is not currently cheap like a new Class F (or H) turbine without CCS. Renewables are much much cheaper.

So this rule, which is likely defensible, would put the US into a situation where the cost ordering for new build was renewables < gas w/ccs < coal w/ccs. Even in the southeast.

If @JoeBiden were to combine this NSPS with a redoubling of efforts at FERC to force competition into uncompetitive grids (authority it has but has historically chosen not to use), the US is off to the decarbonization races and without the legal creativity needed for the CPP.

Just the musings of a lawyer reading a great OpEd by @JustinHGillis and @oboylemm