Months after the U.S. Supreme Court preemptively curtailed its power to set industry-wide greenhouse gas emissions standards, the U.S. Environmental Protection Agency is gathering information for a potential new attempt to regulate emissions from new and existing power plants powered by fossil fuels.

The EPA opened a six-month comment period for public input on five questions the agency will consider as part of the Biden administration’s attempt to reduce greenhouse gas emissions from fossil fuel-fired electric generating units and reduce their impact on communities near those facilities.

The Biden administration would be the third consecutive presidential administration to attempt to establish regulations on power plant pollution. Attempts by the Obama administration and Trump administration were both defeated by legal challenges.

The administration’s attempt will be limited by the supermajority right-wing Supreme Court’s June ruling in West Virginia v. Environmental Protection Agency, which ruled the EPA does not have the power to set emissions limits for existing power plants based on the industry’s ability to shift to cleaner renewable energy sources, called generation shifting, because the law upon which previous attempts to do so were based, the Clean Air Act, did not specifically empower the agency to do so.

The ruling limited the EPA’s ability to “force a nationwide transition away from the use of coal to generate electricity,” as Chief Justice John Roberts wrote in the Court’s opinion, but it left in place the EPA’s authority to regulate carbon dioxide and other power plant pollutants.

The ruling was based on what the court’s conservative justice called the “major questions doctrine,” a standard that allows the Court to block rules and other actions from agencies if they are of “major national significance” and are not based on powers given to the agency specifically by Congress. West Virginia v. EPA was the first time the Supreme Court used the term in a majority opinion.

The EPA’s next attempt at regulating power plant emissions will have to take on an issue affecting the nation, climate change, while facing the near-certain prospect of regulated industries armed with the “major questions doctrine” bringing legal challenges that could end up at the Supreme Court.

The EPA is asking for public comments from all the parties that would be affected by the future regulation, from home residents to power plant utility executives, in order to shape the emissions rule and avoid legal entanglements.

The agency specifically wants everyone to answer what they think of five main and several ancillary questions:

1. What are your views on the feasibility, cost, air pollution impacts and energy impacts on fuel switching or co-firing, carbon capture, utilization and storage, and improvements in operating efficiency? Where would these systems be most appropriate, and are there other systems EPA should be considering instead of or in addition to these systems?

2. What options should EPA be considering in expressing proposed limits on carbon dioxide from existing power plants?

3. What flexibilities should states have in designing plans that establish, implement and enforce carbon dioxide standards from existing power plants? Can EPA allow states to design alternative forms of emission limitations, and what conditions or criteria should the EPA set on those alternatives? What requirement, guidance or tools and resources can EPA provide to ensure the plans improve air quality and reduce emissions?

4. Are there any significant recent announcements or commitments to transitioning generation of which the agency should be aware?

5. What are your thoughts regarding how EPA should consider new combustion turbines as the agency considers developing proposed new source performance standards, and what other factors should be considered?

The proposed rule could have a significant impact on Indiana’s air quality and power plants in the state.

As of 2021, the state of Indiana ranked third in the country for coal consumed for electricity generation. About 57% of the electricity produced in the state comes from power plants powered by coal. Natural gas-powered plants produce 34% of the electricity made in the state.

The EPA ranks Indiana third in the nation in air pollution releases per square mile, according to its Toxics Release Inventory. The air pollution in major urban areas like Indianapolis are the equivalent of smoking nine packs of cigarettes a year.

Previous administration plans sought to deal with pollution and greenhouse gas emissions like those faced by Hoosiers.

The Obama-era Clean Power Plan introduced in 2014 sought to establish state-specific rate-based goals for carbon dioxide emissions from the power sector through generation shifting, as well as guidelines for states to follow in developing plans to achieve the state-specific goals.

The EPA estimated the plan would reduce carbon pollution by 32%, sulfur dioxide emissions by 90%, nitrogen oxide emissions by 72% and reduce 3,600 air pollution-related premature deaths by 2030.

The Republican attorneys general from several coal-dependent states, including Indiana, sued to stop it from being implemented. The Supreme Court issued a stay in 2016, and the Clean Power Plan stayed in legal limbo until the next administration.

The Trump administration introduced its own rule, the Affordable Clean Energy Rule, which delegated authority over greenhouse gas emissions reductions to states. Under the plan, a state could choose to have little, if any, regulation on greenhouse gas emissions. The rule also included a full repeal of the Obama Clean Power Plan.

The EPA, which introduced the ACE Rule, estimated the additional pollution that the rule’s potentially lax standards would produce would result in up to 1,400 more premature deaths every year by 2030.

The American Lung Association and the American Public Health Association filed a lawsuit to challenge the ACE Rule and the Clean Power Plan repeal. The rule was thrown out by a federal court on the final full day of the Trump administration.

Public comments on the EPA’s potential power plant regulations will be accepted until March 7, 2023.

Comments can be submitted online, via email at a-and-r-docket@epa.gov with EPA-HQ-OAR-2022-0723 in the subject line of the message or via fax or mail.