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A desire to please the Court may have rendered the EPA’s new power plant rule a little too ineffectual.

If nothing else, give the Environmental Protection Agency credit for this: They seem to understand the assignment.
Last year, the Supreme Court struck down the Clean Power Plan, President Barack Obama’s ambitious attempt to restrict carbon pollution from power plants. That proposal never carried the force of law, and it had been held in suspended animation by the Court — and later the Trump administration — since 2016. But after President Joe Biden took office, Chief Justice John Roberts and the Court’s conservative majority revived it seemingly entirely for the sake of deeming it illegal.
The proposal went far beyond what was allowed by Congress, Roberts ruled. Normally, an EPA standard would require that power plants or factories install some kind of equipment on their smoke stacks to meet a pollution cap. “By contrast, and by design,” the Obama proposal could only be satisfied by burning less coal, the chief justice wrote. It required “generation shifting,” forcing states to get more of their power from renewable, nuclear, or natural-gas plants.
That overreached the EPA’s authority under the Clean Air Act, Roberts declared. If the EPA wanted to regulate greenhouse gases, then it needed to treat them like a normal air pollutant — and it needed to act like a normal technocratic agency. Above all, it had to keep its regulations to those that could be accomplished “inside the fenceline” of each power plant.
So last week, when the Biden administration finally unveiled its own draft attempt at regulating carbon pollution from power plants, it knew it was playing on the Court’s, well, court. And it behaved accordingly. The best thing you can say about the EPA’s new power-plant proposal — which will be one of the Biden era’s most important climate regulations — is that it was meticulously, painstakingly tailored to the Court’s demands. If Chief Justice Roberts asked for a normal rule, then the EPA has delivered one so awkwardly, self-consciously normal that it seems a little like a narc. The worst thing about the new rule is that this desire to please the Court may have rendered the rule a little too ineffectual.
If America wants to fight climate change, it must clean up its power plants. Generating abundant, cheap, zero-carbon electricity is the key to the country’s decarbonization strategy.
“If you clean up the power sector, it enables you to clean up other sectors of the economy too, through electrification,” Leah Stokes, an environmental-science professor at the University of California, Santa Barbara, told me. “Electric cars, heat pumps, induction stoves — all these machines can be fueled with clean power.”
Biden’s climate law, the Inflation Reduction Act, will slash emissions from the sector over the next decade, according to federal and independent modeling efforts. But it won’t get the sector all the way there. That’s where the new proposal is supposed to step in.
As per the Supreme Court’s request, the proposal details how every kind of power plant — even those that burn coal or natural gas — can meet their climate requirements for decades to come. It mandates a buildout of carbon capture and storage infrastructure, or CCS, for most coal and some natural-gas plants that plan to stay open long-term.
“The EPA rule makes sure everyone is on the same level-playing field. If the Inflation Reduction Act is enough to incentivize CCS in some places, the EPA is gonna make sure everyone is gonna do it,” Nick Bryner, a law professor at Louisiana State University, told me. “I think it’s designed very, very well to work in tandem with the IRA tax credits.”
If the IRA is the regulatory-friendly angel on its shoulder, then the Supreme Court’s decision last year — called West Virginia v. EPA — is the devil. The EPA’s desire to stay on the Court’s good side is even visible in the proposal’s name. Previous administrations have tried to give their power-plant rules a memorable name — Obama had the Clean Power Plan, of course, and the Trump administration christened its effort the “Affordable Clean Energy Rule,” or ACE. The Biden administration, by comparison, named the new proposal:
New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule
That’s the NSPSGHGNMRFFFEGU; EGGGEEFFFGU; RACE Rule for short.
I would say that the agency couldn’t have given it a more technocratic name if it tried, except that it obviously tried very hard. “Traditional approach, traditional name,” the EPA’s press office chirped when the Politico reporter Alex Guillén first noted the name. Just what the Supreme Court asked for!, they all but added. The agency is so desperate to look obedient and demure that even its social-media team has been briefed on current federal doctrine.
At the same time, the rule does “a tremendous amount to make the rule as flexible as possible given the constraints they’re working with in West Virginia v. EPA,” Bryner said. Under the proposal, some natural-gas plants can choose between installing carbon-capture equipment or burning low-carbon hydrogen.
But the rules may have erred on the side of too much flexibility, says Charles Harper, a policy analyst at Evergreen, a climate advocacy group and think tank. Evergreen and other environmental groups are worried that the rules might be too generous to fossil fuel companies. They’re focusing their criticism on two elements of the draft: its handling of natural-gas plants and coal retirements.
First, the EPA rule as proposed would not apply to an overwhelming majority of the country’s natural-gas plants.
A large share of carbon emissions from natural-gas plants come from so-called “baseload” plants that generate many hundreds of megawatts of electricity at all hours of the day. The rule focuses on these facilities, and it requires them either to install CCS equipment or to burn hydrogen fuel.
But the rule is not nearly so strict about small or medium-sized natural-gas plants. Natural-gas plants that generate less than 300 megawatts of electricity — or that run less than half the time — are essentially exempt from the rule. This excludes 77% of the country’s natural-gas plants from the new EPA proposal, requiring them to make no changes through 2040.
It is unclear what share of carbon emissions these natural-gas plants represent. The EPA did not provide an estimate of their carbon emissions before the deadline for this story.
As a whole, natural-gas power plants emit 43% of the U.S. electricity sector’s carbon pollution, despite producing nearly twice as much power as coal.
Environmental groups say the proposal’s coal problem is simpler to fix. In the draft, the EPA puts coal-fired power plants in different categories depending on when they’re slated to retire. Plants that have no retirement date — or that will remain open after 2040 — must install equipment to capture 90% of their emissions by the year 2030. Plants shutting down after 2035 must make a cheaper set of changes. And plants due to close by 2032 don’t have to make any changes at all, so long as they don’t increase their emissions over the next decade.
Those deadlines are too long from now, and the EPA should bring them forward in time when it issues a final version of the rule, Harper said. “2040 is pretty far out and would entail a lot of unabated emissions hitting the climate and human health,” he told me.
The EPA still has time to edit this proposal; it will hear public comment over the next few months and probably issue a final version of the rule next year. With the procedural issues resolved, the Supreme Court’s ability to object to that rule is limited to whether carbon capture is feasible and affordable enough to be used under the Clean Air Act.
If there is a bright spot for climate advocates in the new rule, it’s that the Biden administration — and last year’s Democratic majority in Congress — seem to have anticipated that move.
As the House was voting on the IRA last year, Representative Frank Pallone, the chair of the House Energy and Commerce Committee, put a statement in the congressional record saying that the EPA should take the IRA’s generous tax credits into account when proposing power-plant rules. The subsidies should be considered when the agency is deciding whether CCS is feasible and affordable, he said. The EPA cites Pallone’s statement in its new draft.
But ultimately it is Chief Justice John Roberts who will get to decide. Almost a decade ago, a set of conservative states sued the EPA to block it from requiring CCS. That issue has since been held in its own state of suspended animation. It may soon breathe again.
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The cost crisis in PJM Interconnection has transcended partisan politics.
If “war is too important to be left to the generals,” as the French statesman Georges Clemenceau said, then electricity policy may be too important to be left up to the regional transmission organizations.
Years of discontent with PJM Interconnection, the 13-state regional transmission organization that serves around 67 million people, has culminated in an unprecedented commandeering of the system’s processes and procedures by the White House, in alliance with governors within the grid’s service area.
An unlikely coalition including Secretary of Energy Chris Wright, Secretary of the Interior Doug Burgum, and the governors of Indiana, Ohio, Virginia, West Virginia, and Tennessee (Republicans), plus the governors of Maryland, Kentucky, Pennsylvania, Delaware, Illinois, Michigan, New Jersey, and North Carolina (Democrats) — i.e. all 13 states of PJM — signed a “Statement of Principles” Friday demanding extensive actions and reforms to bring new generation onto the grid while protecting consumers.
The plan envisions procuring $15 billion of new generation in the region with “revenue certainty” coming from data centers, “whether they show up and use the power or not,” according to a Department of Energy fact sheet. This would occur through what’s known as a “reliability backstop auction,” The DOE described this as a “an emergency procurement auction,” outside of the regular capacity auction where generation gets paid to be available on the grid when needed. The backstop auction would be for new generation to be built and to serve the PJM grid with payments spreading out over 15 years.
“We’re in totally uncharted waters here,” Jon Gordon, director of the clean energy trade group Advanced Energy United, told me, referring to the degree of direction elected officials are attempting to apply to PJM’s processes.
“‘Unprecedented,’ I feel, is a word that has lost all meaning. But I do think this is unprecedented,” Abraham Silverman, a Johns Hopkins University scholar who previously served as the New Jersey Board of Public Utilities’ general counsel, told me.
“In some ways, the biggest deal here is that they got 13 governors and the Trump administration to agree to something,” Silverman said. “I just don't think there's that many things that [Ohio] Governor [Mike] DeWine and or [Indiana] Governor [Mike] Braun agree with [Maryland] Governor [Wes] Moore.”
This document is “the death of the idea that PJM could govern itself,” Silverman told me. “PJM governors have had a real hands off approach to PJM since we transitioned into these market structures that we have now. And I think there was a real sense that the technocrats are in charge now, the governors can kind of step back and leave the PJM wrangling to the public service commissions.”
Those days are over.
The plan from the states and the White House would also seek to maintain price caps in capacity auctions, which Pennsylvania Governor Josh Shapiro had previously obtained through a settlement. The statement envisions a reliability auction for generators to be held by September of this year, and requested that PJM make the necessary filings “expeditiously.”
Shapiro’s office said in a statement that the caps being maintained was a condition of his participation in the agreement, and that the cost limit had already saved consumers over $18 billion.
The Statement of Principles is clear that the costs of new generation procured in the auction should be allocated to data centers that have not “self-procured new capacity or agreed to be curtailable,” a reference to the increasingly popular idea that data centers can avoid increasing the peak demand on the system by reducing their power usage when the grid is stressed.
The dealmaking seems to have sidestepped PJM entirely, with a PJM spokesperson noting to Bloomberg Thursday evening that its representatives “ were not invited to the event they are apparently having” at the White House. PJM also told Politico that it wasn’t involved in the process.
“PJM is reviewing the principles set forth by the White House and governors,” the grid operator said in a statement to Heatmap.
PJM also said that it would be releasing its own long-gestating proposal to reform rules for large load interconnection, on which it failed to achieve consensus among its membership in November, on Friday.
“The Board has been deliberating on this issue since the end of that stakeholder process. We will work with our stakeholders to assess how the White House directive aligns with the Board’s decision,” the statement said.
The type of “backstop procurement” envisioned by the Statement of Principles sits outside of PJM’s capacity auctions, Jefferies analysts wrote in a note to clients, and “has been increasingly inevitable for months,” the note said.
While the top-down steering is precedent-breaking, any procurement within PJM will have to follow the grid’s existing protocols, which means submitting a plan and seeking signoff from the Federal Energy Regulatory Commission, Gordon told me. “Everything PJM does is guided by their tariffs and their manuals,” he said. “They follow those very closely.”
The governors of the PJM states have been increasingly vocal about how PJM operates, however, presaging today’s announcement. “Nobody really cared about PJM — or even knew what they PJM was or what they did — until electric prices reached a point where they became a political lightning rod,” Gordon said.
The Statement is also consistent with a flurry of announcements and policies issued by state governments, utility regulators, technology companies, and the White House this year coalescing around the principle that data centers should pay for their power such that they do not increase costs for existing users of the electricity system.
Grid Strategies President Rob Gramlich issued a statement saying that “the principle of new large loads paying their fair share is gaining consensus across states, industry groups, and political parties. The rules that have been in place for years did not ensure that.”
This $15 billion could bring on around 5.5 gigawatts of new capacity, according to calculations done by Jefferies. That figure would come close to the 6.6 gigawatts PJM fell short of its target reserve margin after its last capacity auction, conducted in December.
That auction hit the negotiated price caps and occasioned fierce criticism for how PJM manages its capacity markets. Several commissioners of the Federal Energy Regulatory Commission have criticized PJM for its high capacity prices, low reserve margin, and struggles bringing on new generation. PJM’s Independent Market Monitor has estimated that planned and existing data center construction has added over $23 billion in costs to the system.
Several trade and advocacy groups pointed out, however, that a new auction does not fix PJM’s interconnection issues, which have become a major barrier to getting new resources, especially batteries, onto the grid in the PJM region. “The line for energy projects to connect to the power grid in the Mid-Atlantic has basically had a ‘closed for maintenance’ sign up for nearly four years now, and this proposal does nothing to fix that — or any of the other market and planning reforms that are long overdue,” AEU said in a statement.
The Statement of Principles includes some language on interconnection, asking PJM to “commit to rapidly deploying broader interconnection improvements” and to “achieving meaningful reductions in interconnection timelines,” but this language largely echoes what FERC has been saying since at least its Order No. 2023, which took effect over two years ago.
Climate advocacy group Evergreen Action issued a statement signed by Deputy Director of State Action Julia Kortrey, saying that “without fixing PJM’s broken interconnection process and allowing ready-to-build clean energy resources onto the grid, this deal could amount to little more than a band aid over a mortal wound.”
The administration’s language was predictably hostile to renewables and supportive of fossil fuels, blasting PJM for “misguided policies favored intermittent energy resources” and its “reliance on variable generation resources.” PJM has in fact acted to keep coal plants in its territory running, and has for years warned that “retirements are at risk of outpacing the construction of new resources,” as a PJM whitepaper put it in 2023.
There was a predictable partisan divide at the White House event around generation, with Interior Secretary Burgum blaming a renewables “fairy tale” for PJM’s travails. In a DOE statement, Burgum said “For too long, the Green New Scam has left Mid-Atlantic families in the dark with skyrocketing bills.”
Shapiro shot back that “anyone who stands up here and says we need one and not the other doesn’t have a comprehensive, smart energy dominance strategy — to use your word — that is going to ultimately create jobs, create more freedom and create more opportunity.”
While the partisan culture war over generation may never end, today’s announcement was more notable for the agreement it cemented.
“There is an emerging consensus that the political realities of operating a data center in this day and age means that you have to do it in a way that isn't perceived as big tech outsourcing its electric bill to grandma,” Silverman said.
Editor’s note: This article originally misidentified the political affiliation of the governor of Kentucky. It’s been corrected. We regret the error.
“Additionality” is back.
You may remember “additionality” from such debates as, “How should we structure the hydrogen tax credit?”
Well, it’s back, this time around Meta’s massive investment in nuclear power.
On January 9, the hyperscaler announced that it would be continuing to invest in the nuclear business. The announcement went far beyond its deal last year to buy power from a single existing plant in Illinois and embraced a smorgasbord of financial and operational approaches to nukes. Meta will buy the output for 20 years from two nuclear plants in Ohio, it said, including additional power from increased capacity that will be installed at the plants (as well as additional power from a nuclear plant in Pennsylvania), plus work on developing new, so-far commercially unproven designs from nuclear startups Oklo and TerraPower. All told, this could add up to 6.6 gigawatts of clean, firm power.
Sounds good, right?
Well, the question is how exactly to count that power. Over 2 gigawatts of that capacity is already on the grid from the two existing power plants, operated by Vistra. There will also be an “additional 433 megawatts of combined power output increases” from the existing power plants, known as “uprates,” Vistra said, plus another 3 gigawatts at least from the TerraPower and Oklo projects, which are aiming to come online in the 2030s
Princeton professor and Heatmap contributor Jesse Jenkins cried foul in a series of posts on X and LinkedIn responding to the deal, describing it as “DEEPLY PROBLEMATIC.”
“Additionality” means that new demand should be met with new supply from renewable or clean power. Assuming that Meta wants to use that power to serve additional new demand from data centers, Jenkins argued that “the purchase of 2.1 gigawatts of power … from two EXISTING nuclear power plants … will do nothing but increase emissions AND electricity rates” for customers in the area who are “already grappling with huge bill increases, all while establishing a very dangerous precedent for the whole industry.”
Data center demand is already driving up electricity prices — especially in the area where Meta is signing these deals. Customers in the PJM Interconnection electricity grid, which includes Ohio, have paid $47 billion to ensure they have reliable power over the grid operator’s last three capacity auctions. At least $23 billion of that is attributable to data center usage, according to the market’s independent monitor.
“When a huge gigawatt-scale data center connects to the grid,” Jenkins wrote, “it's like connecting a whole new city, akin to plopping down a Pittsburgh or even Chicago. If you add massive new demand WITHOUT paying for enough new supply to meet that growth, power prices spike! It's the simple law of supply & demand.”
And Meta is investing heavily in data centers within the PJM service area, including its Prometheus “supercluster” in New Albany, Ohio. The company called out this facility in its latest announcement, saying that the suite of projects “will deliver power to the grids that support our operations, including our Prometheus supercluster in New Albany, Ohio.”
The Ohio project has been in the news before and is planning on using 400 megawatts of behind-the-meter gas power. The Ohio Power Siting Board approved 200 megawatts of new gas-fired generation in June.
This is the crux of the issue for Jenkins: “Data centers must pay directly for enough NEW electricity capacity and energy to meet their round-the-clock needs,” he wrote. This power should be clean, both to mitigate the emissions impact of new demand and to meet the goals of hyperscalers, including Meta, to run on 100% clean power (although how to account for that is a whole other debate).
While hyperscalers like Meta still have clean power goals, they have been more sotto voce recently as the Trump administration wages war on solar and wind. (Nuclear, on the other hand, is very much administration approved — Secretary of Energy Chris Wright was at Meta’s event announcing the new nuclear deal.)
Microsoft, for example, mentioned the word “clean” just once in its Trump-approved “Building Community-First AI Infrastructure” manifesto, released Tuesday, which largely concerned how it sought to avoid electricity price hikes for retail customers and conserve water.
It’s not entirely clear that Meta views the entirety of these deals — the power purchase agreements, the uprates, financially supporting the development of new plants — as extra headroom to expand data center development right now. For one, Meta at least publicly claims to care about additionality. Meta’s own public-facing materials describing its clean energy commitments say that a “fundamental tenet of our approach to clean and renewable energy is the concept of additionality: partnering with utilities and developers to add new projects to the grid.”
And it’s already made substantial deals for new clean energy in Ohio. Last summer, Meta announced a deal with renewable developer Invenergy to procure some 440 megawatts of solar power in the state by 2027, for a total of 740 megawatts of renewables in Ohio. So Meta and Jenkins may be less far apart than they seem.
There may well be value in these deals from a sustainability and decarbonization standpoint — not to mention a financial standpoint. Some energy experts questioned Jenkins’ contention that Meta was harming the grid by contracting with existing nuclear plants.
“Based on what I know about these arrangements, they don’t see harm to the market,” Jeff Dennis, a former Department of Energy official who’s now executive director of the Electricity Customer Alliance, an energy buyers’ group that includes Meta, told me.
In power purchase agreements, he said, “the parties are contracting for price and revenue certainty, but then the generator continues to offer its supply into the energy and capacity markets. So the contracting party isn’t siphoning off the output for itself and creating or exacerbating a scarcity situation.”
The Meta deal stands in contrast to the proposed (and later scotched) deal between Amazon and Talen Energy, which would have co-located a data center at the existing Susquehanna nuclear plant and sucked capacity out of PJM.
Dennis said he didn’t think Meta’s new deals would have “any negative impact on prices in PJM” because the plants would be staying in the market and on the grid.
Jenkins praised the parts of the Meta announcement that were both clean and additional — that is, the deals with TerraPower and Oklo, plus the uprates from existing nuclear plants.
“That is a huge purchase of NEW clean supply, and is EXACTLY what hyperscalars [sic] and other large new electricity users should be doing,” Jenkins wrote. “Pay to bring new clean energy online to match their growing demand. That avoids raising rates for other electricity users and ensures new demand is met by new clean supply. Bravo!”
But Dennis argued that you can’t neatly separate out the power purchase agreement for the existing output of the plants and the uprates. It is “reasonable to assume that without an agreement that shores up revenues for their existing output and for maintenance and operation of that existing infrastructure, you simply wouldn't get those upgrades and 500 megawatts of upgrades,” he told me.
There’s also an argument that there’s real value — to the grid, to Meta, to the climate — to giving these plants 20 years of financial certainty. While investment is flooding into expanding and even reviving existing nuclear plants, they don’t always fare well in wholesale power markets like PJM, and saw a rash of plant retirements in the 2010s due to persistently low capacity and energy prices. While the market conditions are now quite different, who knows what the next 20 years might bring.
“From a pure first order principle, I agree with the additionality criticism,” Ethan Paterno, a partner at PA Consulting, an innovation advisory firm, told me. “But from a second or third derivative in the Six Degrees of Kevin Bacon, you can make the argument that the hyperscalers are keeping around nukes that perhaps might otherwise be retired due to economic pressure.”.
Ashley Settle, a Meta spokesperson, told me that the deals “enable the extension of the operational lifespan and increase of the energy production at three facilities.” Settle did not respond, however, when asked how Facebook would factor the deals into its own emissions accounting.
“The only way I see this deal as acceptable,” Jenkins wrote, “is if @Meta signed a PPA with the existing reactors only as a financial hedge & to help unlock the incremental capacity & clean energy from uprates at those plants, and they are NOT counting the capacity or energy attributes from the existing capacity to cover new data center demand.”
There’s some hint that Meta may preserve the additionality concept of matching only new supply with demand, as the announcement refers to “new additional uprate capacity,” and says that “consumers will benefit from a larger supply of reliable, always-ready power through Meta-supported uprates to the Vistra facilities.” The text also refers to “additional 20-year nuclear energy agreements,” however, which would likely not meet strict definitions of additionality as it refers to extending the lifetime and maintaining the output of already existing plants.
A third judge rejected a stop work order, allowing the Coastal Virginia offshore wind project to proceed.
Offshore wind developers are now three for three in legal battles against Trump’s stop work orders now that Dominion Energy has defeated the administration in federal court.
District Judge Jamar Walker issued a preliminary injunction Friday blocking the stop work order on Dominion’s Coastal Virginia offshore wind project after the energy company argued it was issued arbitrarily and without proper basis. Dominion received amicus briefs supporting its case from unlikely allies, including from representatives of PJM Interconnection and David Belote, a former top Pentagon official who oversaw a military clearinghouse for offshore wind approval. This comes after Trump’s Department of Justice lost similar cases challenging the stop work orders against Orsted’s Revolution Wind off the coast of New England and Equinor’s Empire Wind off New York’s shoreline.
As for what comes next in the offshore wind legal saga, I see three potential flashpoints:
It’s important to remember the stakes of these cases. Orsted and Equinor have both said that even a week or two more of delays on one of these projects could jeopardize their projects and lead to cancellation due to narrow timelines for specialized ships, and Dominion stated in the challenge to its stop work order that halting construction may cost the company billions.