(Bloomberg) -- The top US electric utility trade group is going to federal court Wednesday to simultaneously challenge stringent new pollution-cutting requirements for power plants —— and defend the government’s authority to set targeted standards. 

The bifurcated approach marks a bid by the powerful Edison Electric Institute to thread the needle in an already heated legal battle over federal requirements forcing the nation’s existing coal plants to capture nearly all of their carbon dioxide emissions — or close down — by 2039. The rule, which compels similar pollution cuts for many new gas-fired plants, is revealing deep divisions among electric generators, utilities and operators required to follow the mandates.

The fight will decide the fate of a signature element of President Joe Biden’s climate agenda — and help shape the future of Environmental Protection Agency rules targeting planet-warming pollution from existing gas-fired power plants.

The legal gambit by EEI, which represents investor-owned utilities, steers clear of a wholesale assault on the EPA’s authority to set strict air pollution limits, even when they are so tough they could encourage companies to close power plants. 

By contrast, other rule opponents — including 25 states, the National Rural Electric Cooperative Association and some of EEI’s own members — already are lining up to deliver that broader legal attack, arguing the regulation defies a 2022 Supreme Court ruling that curtailed the EPA’s authority to impose greenhouse gas curbs that seek to shift power generation away from fossil fuels. 

Read More: Red States and Coal Groups Fight Biden Power Plant Rule

In its petition for review filed with a Washington, DC-based federal appeals court, EEI takes aim at the EPA’s determination that for many power plants, the “best system of emission reduction” is carbon capture technology that’s been available for decades but is barely used in the electric sector today. The trade group argues the EPA didn’t show carbon capture systems are “adequately demonstrated for broad deployment across our industry at this time,” or that the 90% capture rates it targets “are currently achievable.” 

At the same time, EEI is moving separately to show support for the EPA’s authority to carve up US power plants based on their electric generation, retirement plans and other attributes — and then make unique determinations about the best emission-control systems for each category. In a motion to intervene on behalf of the government, EEI also notes its support for flexible compliance options that give states and companies the opportunity to meet requirements through other means. 

“CCS is an emerging technology and EPA’s implementation timelines do not align with the current reality,” said Dan Brouillette, EEI president. Although “electric companies across the country are investing in CCS, there is not a single coal- or natural gas-based power plant operating today that meets the CCS requirements set by EPA.”

An EPA spokesman declined to comment on litigation. But the agency and its supporters argue carbon capture has been “adequately demonstrated” — a legal threshold for the government’s embrace under the Clean Air Act. The law doesn’t require the technology to already be widely deployed, supporters argue, and the EPA can hold the industry to a standard of improved design as long as there is substantial evidence improvements are feasible. 

The rule represents the government’s third attempt to set carbon dioxide limits on existing coal plants. The earlier Obama-era Clean Power Plan was stayed by the Supreme Court before it ever went into effect. 

A factor in the EEI board members’ decision last week to adopt this legal strategy — over the objections of some members — was desire for more certainty and predictability, according to people familiar with the matter who asked not to be named because the discussion was private.

“Ultimately we want to make sure that we help the country go as clean as we can, as fast as we can while preserving reliability and affordability,” said Pedro Pizarro, chief executive officer of Edison International, who now serves as chair of the EEI board. To do that “we need rules that are going to stay — and that are not going to be stayed — rules that ultimately investors can bank against and can put capital against without the fear that they were infirm and might get thrown out three years later.”

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