Sue & Litigate - ORIGINAL CONTENT

US EPA  Administrator Lee Zeldin recently announced the EPA would be reassessing a number of past regulatory actions. Many of the actions being questioned were developed based on the application of the concept of the Linear No Threshold model to pollutant exposure. Essentially, the application of this model assumes that if a pollutant is dangerous at some concentration, it is dangerous at any concentration and must be controlled; and, once a control method has been identified, it must be applied.

Many of these regulations were initiated by lawsuits filed by environmental organizations or other NGOs, many funded in part by EPA. EPA then agreed to settle the lawsuit by implementing a new or enhanced regulation. This process, typically referred to as “Sue and Settle” appears to have originated with EPA, though it has since metastasized to other Executive Branch departments and agencies.

The reassessments planned by EPA will almost certainly result in numerous lawsuits by states, cities and NGOs which would expect to be affected. However, it appears that Administrator Zeldin has ended “Sue and Settle” at EPA and will choose to litigate. This suggests that the process of implementing the results of the reassessments will be long and acrimonious, both in the courts and in the media.

The EPA 2009 Endangerment Finding regarding vehicle emissions led to the combination of much more restrictive CAFÉ Standards and much more restrictive tailpipe emission standards which are commonly referred to as the “Electric Vehicle Mandate”, since only electric vehicles could meet the standards while supposedly providing the required vehicle utility.

The EPA Endangerment Finding also led to the Clean Power Plan 2 (CPP2). Under this plan, as with the motor vehicle standards, EPA did not ban the continued operation of existing coal and natural gas generators or the construction of new natural gas generators. Rather, it established emissions standards for these powerplants which are unattainable with currently available technologies and which would result in reduced net generator capacity of 25-40% if advanced versions of those control technologies were able to achieve the required emissions reductions. CPP2 is essentially a wind, solar and storage mandate.

CPP2 caused numerous owners of existing coal generating stations to move forward their scheduled retirement dates rather than commit the capital necessary to adapt existing and partially depreciated powerplants for operation with carbon capture and storage systems which might not be capable of achieving the required emissions reductions, but would reduce generating capacity and increase operation and maintenance expenses. The powerplant owners also expected resistance to the required plant investment from state regulatory commissions because of the projected adverse impacts on rates.

The prospect of early powerplant closures driven by CPP2 became a cause of concern for both the Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC) because of the projected loss of dispatchable generating capacity at a time when capacity reserve margins were already shrinking and electricity demand was projected to grow rapidly, driven by federal electrification initiatives and the projected growth of data centers and AI.