Coal lawyer: Quick court action essential to keeping EPA rules from killing industry

By Dustin Bleizeffer
Posted 5/7/24

One of the state’s top hired lawyers predicts Wyoming and other coal proponents will prevail in federal court to stop the U.S. Environmental Protection Agency’s new coal pollution rules …

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Coal lawyer: Quick court action essential to keeping EPA rules from killing industry


One of the state’s top hired lawyers predicts Wyoming and other coal proponents will prevail in federal court to stop the U.S. Environmental Protection Agency’s new coal pollution rules that most observers agree would effectively end the state’s coal industry.

“I’m going to tell you right now: EPA is not going to win these lawsuits,” Jackson Walker LLP attorney Mike Nasi said.

The bigger question, according to Nasi, is whether the plaintiffs’ victories will come in time to save coal-fired power plants and thermo-electric coal mining. Unless a federal court grants injunctive relief — which would put the rules on hold — soon, Nasi fears utilities may set retirement dates for coal plants to comply with stringent new emission standards that go into effect in 2032 and invest in renewable energy to replace the power while the rules are litigated.

“The regulatory uncertainty that ensues while the case is litigated for two to three or four years requires people to make capital investments [that are] at risk, and people will simply retire units rather than taking that risk.”

Nasi addressed a crowd of over 150 attendees Wednesday at the Next Frontier Energy Summit in Cheyenne. The third annual event was organized by the Wyoming Energy Authority.

Nasi and several other coal proponents who spoke at the event dubbed April 25 “Black Thursday” — the day the EPA issued four “final rules” mandating major cuts to coal pollution, including a 2032 deadline for coal-burning power plants to either capture 90% of carbon dioxide at the smokestack, convert to natural gas or close altogether.

Not only are those parameters technologically and economically out-of-reach by 2032, according to carbon capture proponents and some utilities that burn Wyoming coal, they essentially serve as a death sentence for the state’s coal mining industry that, for the past 50 years, has served as a major pillar in Wyoming’s economy.

“I always say that I’m living the dream,” Wyoming Mining Association Executive Director Travis Deti said, “and I’m living it one nightmare at a time.”

The EPA’s coal pollution rules are “not about climate,” Deti continued. “And it’s not about the environment. It’s about killing the coal industry. And when you go through a day like that, and you end up under your desk with your thumb in your mouth, sobbing, that’s tough.”

Although the situation seems dire for coal and the communities that depend on it, Nasi said he believes utilities and operators of a growing power-sharing market will join in the fight against the federal rules. In addition to Nasi’s assessment that the EPA’s rules are in violation of the Clean Air Act, they threaten to “blow up the grid” by creating power reliability gaps across the nation, he said.


Coal litigation and carbon capture plans

Nasi helps direct the Energy Policy Network, a group that advocates for the continued use of coal, including through litigation against proposed coal plant closures in other states. The organization is partially funded by a $1.2 million Wyoming-taxpayer-backed “coal litigation fund.”

The group has come under fire in the past for an alleged lack of transparency, including concerns that it wasn’t forthcoming about its backers while advocating for policies in other states.

But many Wyoming lawmakers and Gov. Mark Gordon make no apologies for their support of the group, which claims it has successfully delayed closures of power plants that burn Wyoming coal. Immediately following the EPA’s announcement of the coal pollution rules, Gordon promised to sue the federal agency, saying the rules “are a travesty, and their effects are devastating.”

“We have seen an absolute blizzard of federal regulations that are being pushed down almost daily,” Gordon told Next Frontier Energy Summit attendees this week. “They all have an incredible impact on how our nation is going to supply its energy in the future. This is going to require an enormous amount of legal challenge.”

Although the federal rules acknowledge technological advancements toward carbon capture as a viable option for coal plants to reduce their greenhouse gas emissions and remain in operation, the EPA’s thresholds and 2032 compliance deadline push the option just out of reach, according to Nasi. In fact, both Gordon and the Energy Policy Network argue that existing coal-burning power plants are essential to launching an industrial carbon capture renaissance that will make more gains in greenhouse gas reductions globally than simply shutting down the U.S. coal fleet.

It’s a notion that environmental groups and some industry market analysts say is a dangerous delay tactic without assurance that coal plants will ever actually reduce their greenhouse gas emissions.

Nonetheless, Nasi claims there’s a growing acknowledgement in the electric industry that taking coal plants offline too soon will create devastating power shortages at a time when the nation’s demand for electricity is trending upward. The technology needs more time, he said.

“We will get there,” Nasi said. “And your governor is one of the best advocates for how to talk about our ability to get there and the need for us to get there.’”

Several states and the U.S. Department of Energy are looking to Wyoming for its leadership on carbon capture, including its potential applications in coal-fueled power, according to Wyoming Energy Authority Executive Director Rob Creager, who formerly served as Gordon’s senior policy advisor. The technology is also critical to ensure the continued use of natural gas to generate electricity under the EPA’s rules, he noted.

“Our No. 1 reason, our No. 1 goal for doing carbon capture is to make sure our fossil fuels have a future,” Creager said.


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