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One day before President-elect Joe Biden assumes office, a US
federal appeals court in Washington, DC tossed out a signature
Trump administration regulation that limited power plant releases
of greenhouse gases, terming it illegal.
A three-judge panel for the US Court of Appeals for the District
of Columbia Circuit said on 19 January that the US
Environmental Protection Agency (EPA) misconstrued the Clean Air
Act, the nation's key air pollution law, and ordered the agency to
rewrite the Affordable Clean Energy rule, or ACE.
"Because promulgation of the ACE rule and its embedded repeal of
the Clean Power Plan rested critically on a mistaken reading of the
Clean Air Act, we vacate the ACE rule and remand to the agency,"
the judges wrote in a per curiam opinion.
With the dismissal of the ACE rule, Biden now has a clean slate
to rewrite limits for power plant carbon emissions using this
opinion as a guide.
"This decision frees up the new Biden administration to begin
working immediately on the science-based greenhouse pollution rules
we desperately need to make up for lost time," Clare Lakewood,
legal director for the nonprofit Center for Biological Diversity's
Climate Law Institute that was involved in the litigation,
said.
Released in 2019, ACE replaced the Obama administration's more
stringent 2015 Clean Power Plan—which set the first carbon
dioxide limits for existing coal-fired power plants—with
standards based on a list of technologies that EPA identified for
upgrading plant equipment and improving operations. The ACE rule
did not set a numerical standard for power plants.
Upon publication of the ACE rule, 23 states and eight cities led
by New York, along with separate coalitions of environmental and
public health groups, trade associations for renewable energy, and
power utilities challenged its legality. The rule was backed by a
West Virginia-led coalition of 20 states as well as coal companies,
notably Texas-based North American Coal and Colorado-based
Westmoreland Mining.
These separate coalitions already were challenging the repeal of
the Clean Power Plan.
The petitioning states and groups asked the court whether EPA
acted lawfully in adopting the regulation, and the judges responded
with a resounding, "It did not."
The judges said EPA not only misconstrued a Clean Air Act
provision, but also acted arbitrarily and capriciously by slowing
down the process of emissions reductions.
In contrast to the Obama rule, ACE barred the trading of carbon
dioxide credits and averaging carbon dioxide reductions across
coal-fired units and forbade states from including carbon capture
and storage technologies as one of the approaches to limiting
emissions. The rule also didn't allow utilities to co-fire biomass,
or woody pellets, to reduce their carbon footprint.
This was the result of the Trump EPA's narrow reading of Section
111(d) of the Clean Air Act, or Section 7411 of the US Code, which
underpins the ACE rule. The ACE rule only permits electric
utilities to limit carbon dioxide emissions within the fencelines
or boundaries of affected coal-fired units.
"The EPA's new reading of Section 7411 would atrophy the muscle
that Congress deliberately built up," the judges wrote, adding:
"The EPA asserts it lacks authority to curb a pollutant that the
agency itself has repeatedly deemed a grave danger to health and
welfare but that eludes effective control under other provisions of
the act."
The DC Circuit judges said EPA's position was wrong. They said
the statute says nothing about the measures that sources may use to
comply with the standards states apply, and "the EPA cites no
separate authority that would require compliance measures to be
source-specific" or limited to measures taken inside the fenceline
of a power plant. They cited emissions trading as an example for
meeting carbon limits, an approach that ACE had barred. They also
found nothing in the statute to bar generation shifting to meet
emissions limits.
"In sum, the straitened vision of the EPA's best system that the
agency espies in Section 7411 is simply not supported by the text,
let alone plainly and unambiguously required by it," the judges
wrote.
Judge Justin Walker, a Trump appointee, dissented in part from
his two colleagues on the DC Circuit panel, Cornelia Pillard and
Patricia Millett, because he said EPA was within its right to
repeal the Obama rule, but improperly applied the law to the ACE
rule. Both Pillard and Millett were appointed by President Barack
Obama in 2013.
The EPA for its part said it was disappointed and "will explore
all litigation options."
"We are disappointed that the panel majority rejected EPA's
well-supported repeal of the Clean Power Plan and its regulation of
GHGs from coal-fired power plants in the Affordable Clean Energy
rule. The decision risks injecting more uncertainty at a time when
the nation needs regulatory stability," EPA spokeswoman Molly Block
said in a 19 January statement.
New York University School of Law's Institute of Policy
Integrity said the Trump administration devised "an unsupportable
legal theory" to justify the repeal of the Clean Power Plan.
However, Megan Houdeshel, a Clean Air Act attorney with Dorsey
& Whitney who helps mining and industrial clients with
permitting and compliance, warned companies of regulatory
uncertainty in the coming months.
"I think the decision is just the first example of many we are
going to see in terms of industry uncertainty when it comes to
Trump-era regulations. Whether it be courts overturning
regulations, or the incoming Biden administration reversing course
on executive orders and policy, companies should be ready for
changes in environmental regulations applicable to their business
and operation," Houdeshel said in a statement.
No rush to comply
EPA had given states until 8 July 2022 to write plans to
implement the ACE rule, and a
recent IHS Markit survey found that states are in no rush to
write plans. Three states-North Dakota, Maryland, and Virginia-said
they were holding off on writing their plans until they had more
certainty about what Biden plans to do with the rule.
The DC Circuit also struck down this compliance timeline, saying
it was unnecessarily slowing down the process of emissions
reductions.
Maryland, which opposed the rule in court, welcomed the DC
Circuit's ruling, especially as it gives the green light to carbon
emissions trading. Maryland is a member of the Regional Greenhouse
Gas Initiative (RGGI), a carbon emissions trading program among 11
northeastern US states.
"Maryland appreciates this good news as the rule reduced climate
ambition and potentially clouded the bright future for [RGGI] and
other collaborations beyond individual power plants and states,"
Maryland Environment Secretary Benjamin Grumbles said in a
statement.
Joanne Spalding, chief climate counsel at the environmental
nonprofit Sierra Club, called the court's ruling an "apt bookend to
the Trump administration's EPA."
Posted 19 January 2021 by Amena Saiyid, Senior Climate and Energy Research Analyst