Faced with the Obama administration's new crackdown on power plant emissions, the coal and electric utility industry is honing a legal strategy it believes could derail the measures.
New rules governing the construction of fossil fuel power plants, unveiled by the Environmental Protection Agency on Friday, have closed one of the largest legal loopholes of the initial regulations put forward in 2012, by providing separate standards for gas- and coal-fired plants.
Now, opponents have another tactic in mind: challenging the idea that carbon capture and storage (CCS), a decades-old but commercially tenuous technology that will be a requisite for any company building a new coal-fired power plant, is a viable solution to curbing greenhouse gases.
Under the Clean Air Act, the basis for the newly proposed rule, the EPA is required to set pollution standards using the "best system of emission reduction" with technology that has been "adequately demonstrated."
That language is likely to sit at the core of any lawsuit that could be filed by industry lawyers at the end of what could be a months-long rulemaking process.
"They tried one approach that is legally flawed," said Jeff Holmstead, a lawyer representing coal industry groups for Bracewell & Giuliani, referring to the EPA. "They are doing something else that can be struck down in court."
TVNL Comment: More profit wins over clean air. What else is new? Wake up, America.