The Environmental Protection Agency is proposing to disapprove parts of Colorado’s air pollution implementation plan regarding the state’s compliance with the federal Regional Haze Rule.

The rule requires that facilities that emit potential haze-producing substances show continuing reasonable progress every 10 years towards the ultimate goal of restoring “natural visibility” and preventing future visibility impacts in places like national parks and wilderness areas.

Reports have been circulating in the media and online that this disapproval will prevent state regulators from mandating the closing all coal-fired power plants by 2029, as called for by Gov. Jared Polis’ Greenhouse Gas Reduction Roadmap.

But legal experts told The Denver Gazette that the EPA does not have authority to prohibit coal plant closures, and that the proposed action does little more than withdraw the EPA from further regulatory action regarding Colorado’s haze compliance. At the moment Colorado, has met its “reasonable progress” obligations.

State officials said that the proposed action will not affect the scheduled closures of 11 coal plants and two coal-handling facilities that may contribute to reduced visibility in protected areas.

“We’re not impacted by the EPA’s proposed partial disapproval of Colorado’s ambitious and protective Regional Haze Plan — and the decision won’t change Colorado’s direction or delay the transition already underway,” said Michael Ogletree, senior director of State Air Quality Programs at the Colorado Department of Public Health and Environment, in a statement.

The trigger for the proposed EPA action was a request by Colorado Springs Utilities to state regulators to extend the mandatory shutdown date of 2029 for the city’s Nixon power plant.

Travas Deal, CEO at the utility, told The Denver Gazette that the state has been balking at an extension beyond 2029, in part citing the EPA haze regulations as justification for denial.

Trying to replace the energy supplied by the Nixon plant in the allotted time has been highly challenging, he said. Deal issued more than 200 requests for proposals for new solar generation and said they all came back at two-to-three times the cost the utility had anticipated.

“The thing is we have to have base load power to supplement and work alongside a diverse portfolio of renewables,” said Deal. “There is no technology currently that allows 100% of all power to be renewable within the state because the technology doesn’t support it. As far as battery capacity, battery longevity and availability and transmission, there’s a lot of challenges right now for us to meet the current 80% mandates without extreme price increases for our customers.”

Colorado Springs Utilities is not asking to keep the plant online permanently, rather officials are asking for an extension of the deadline so the utility can acquire or build replacement base load generators and not waste ratepayer’s money shutting down a plant that’s nowhere near it’s retirement date.

The date chosen for compliance, 2029, was randomly chosen and politically driven and didn’t give adequate consideration to the ability of utilities to comply or the costs to ratepayers of shutting down assets that still have substantial useful life and building replacements, Deal said.

State regulations under Senate Bill 23-198 require greenhouse gas emissions reductions in the electric power sector of 80% by 2030 from 2005 levels, substantially tightening the requirements and timeline from the original requirements.

Previously, under a Polis executive order, the required reductions were 25% by 2025 and 35% by 2030 from 2012 levels.

The EPA said that it was proposing to approve most of the state’s implementation plan that was submitted to the EPA in 2022 and deals with other air pollution issues like ozone, but that the SIP includes mandatory shutdowns of coal plants, using the federal Regional Haze Program as an excuse, and that might violate federal law.

Legal sources said that the Regional Haze Program does not authorize federal enforcement that would force Colorado regulators to involuntarily shut down power plants, although if the state doesn’t submit an acceptable SIP, the EPA can impose a federal implementation plan.

EPA reasoning for rejecting the haze section of the Colorado’s State Improvement Plan (SIP) included that Colorado’s mandatory shutdown requirements could violate the 5th Amendment rights of plant owners against uncompensated takings. The Clean Air Act, said EPA, specifies that no provisions in a state implementation plan can violate any state or federal laws and that the SIP had not provided adequate assurances that the state’s plan wouldn’t cause a 5th Amendment violation.

The agency noted that Colorado was so far below it’s required haze “reasonable progress” requirement that even if it did not shut down any of the listed sources the state would not exceed the 2028 standard.

“There is a standalone SIP for visibility,” said Denver environmental attorney Paul Seby, “Why is that? It’s because Congress said the aspiration to remedy impairment in a national park is a goal and not a requirement. And the majority of the impairment now is coming from forest fires, from the management of public lands or international emissions that are transported here from outside the United States that contain visibility impairing pollution (including) Africa and China.”

Seby successfully argued against the original 1999 version of the rule in the three-judge U.S. Court of Appeals for the District of Columbia and won in a 2-1 decision. The dissenting judge was Merrick Garland, he said.

The EPA also said that the SIP did not adequately explain and document how the shutdown plan would affect power grid stability, a requirement of the analysis upon which the state bases its plans.

While EPA has no enforcement authority that would allow it to prevent plant shutdowns, the Federal Energy Regulatory Commission and the North American Electric Reliability Corp. do.

In late May, the U.S. Department of Energy ordered that the planned shutdown of the 1,560 MW J.H. Campbell coal-fired power plant in Michigan be delayed for at least 90 days beyond its scheduled May 31 retirement. The DOE characterized the situation in the Midwest as an “energy emergency.”

Just a few days later, in early June, DOE issued a second order requiring Units 3 and 4 of the Eddystone Generating Station in Pennsylvania to continue operating through at least Aug. 28, aiming to prevent potential summer blackouts in the mid-Atlantic grid.