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The US Supreme Court agreed on 29 October to review
a lower court ruling earlier in 2021 that rejected a signature
Trump administration regulation that curbed power plant releases of
GHGs.
The review was initially sought in April by a 19-state coalition
led by West Virginia. North American Coal Corp. filed its own
petition in May, and Colorado-based Westmoreland Mining Holdings
and North Dakota filed separate petitions in June.
In each instance, petitioners challenged the US Court of Appeals
for the District of Columbia Circuit's 2-1 decision in January to
vacate and remand the 2019 Affordable Clean Energy Rule (ACE) for a
rewrite.
The appeals court said the US Environmental Protection Agency
(EPA) under President Donald Trump misconstrued a provision of the
Clean Air Act, the nation's key air pollution law, thereby
illegally restricting the measures that could be imposed to curb
power plant GHGs.
However, it stopped short of reinstating the Obama-era Clean
Power Plan, which ACE replaced.
A review of the lower court ruling means the EPA will have to
wait to rewrite the GHG regulation for power plants until the
Supreme Court has resolved the question of agency's Clean Air Act
authority. It also means the power plants will remain unregulated
for the foreseeable future.
The petitioners asked the Supreme Court to resolve whether EPA
has the broad authority to impose standards based on technology and
approaches that go beyond the fenceline of individual coal-fired
power units to include cap-and-trade regimes and averaging across
plants.
Unbridled power
In their 29 April petition, the states
argued the circuit court, through its ruling, gave EPA, the federal
agency charged with regulating GHGs and other air pollutants,
"unbridled power" to decarbonize any sector of the economy
including factories and power plants, as well as the millions of
homes and small businesses that use natural gas for heating.
In petitioning the highest court in the land, West Virginia
Attorney General Patrick Morrissey contended that the lower court
"inappropriately" interpreted Section 111 of the Clean Air Act as
"authorizing EPA to sidestep Congress to exercise broad regulatory
power that would radically transform the nation's energy grid and
force states to fundamentally shift their energy portfolios away
from coal-fired generation."
Westmoreland Coal asked the court whether the Clean Air Act
"authorizes EPA to decide such matters of vast economic and
political significance as whether and how to restructure the
nation's energy system," while North Dakota was interested in
knowing whether the EPA can set regulations beyond the individual
plants that it said can deprive states of their authority to write
their pollution reduction plans.
Morrissey said the Supreme Court's decision to accept the case
marks the "most consequential victory" since he was able to
persuade the court to stay the Obama-era Clean Power Plan in
February 2016 before it even took effect.
Court has upheld GHG regulation in past
EPA has yet to rewrite ACE since it was remanded to the agency.
EPA Administrator Michael Regan has stated publicly that the court
ruling allowed the agency to take a fresh look at the
regulation.
Following the Supreme Court's action, Regan tweeted out that power plant
carbon pollution hurts families and communities, and threatens
businesses and workers, while noting that "the courts have
repeatedly upheld EPA's authority to regulate dangerous power plant
carbon pollution."
The nonprofit Environmental Defense Fund (EDF), which pledged 29
October to defend the DC Circuit ruling, said the Supreme Court has
repeatedly upheld EPA's authority to limit climate pollution under
the Clean Air Act. EDF referenced the Supreme Court's 2007
Massachusetts v. EPA ruling that climate pollution
qualified as air pollution that is subject to regulation under the
Clean Air Act, concluding that "without a doubt … The statute is
unambiguous."
And again, in the 2011 case of American Electric Power v.
Connecticut (2011), the court held that the Clean Air Act
"speaks directly to emissions of carbon dioxide from" existing
power plants. The EDF said the court pointed specifically to
section 111(d) of the statute, which is the same section that
authorized the Clean Power Plan that "the Trump administration
later attempted to severely constrain."
Released in 2019, ACE replaced the Obama administration's more
stringent 2015 Clean Power Plan—which set the first CO2 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.
In contrast, the Clean Power Plan imposed a numerical limit on
carbon emissions for coal-fired plants, while offering flexibility
to meet this limit through energy efficiency improvements as well
as by trading carbon offsets and fuel switching.
EPA authority in question
New York University School of Law Professor Richard Revesz, who
directs the Institute for Policy Integrity, said the West
Virginia-led petition lacks merit because it claims the EPA lacks
authority to employ emissions trading when regulating power plant
carbon pollution under the Clean Air Act.
"That argument is at odds with decades of regulatory practice
under administrations of both parties," Revesz said in a statement.
"EPA has repeatedly employed flexible techniques like emissions
trading in Clean Air Act rules and should be able to continue to do
so as it works to decarbonize the power sector."
However, Jonathan Adler, director of the Coleman Burke Center
for Environmental Law at the Case Western Reserve University School
of Law in Ohio, described the Supreme Court's move action as "bad
news" for the Biden administration in a 29 October blog with online Reason
magazine.
Adler said the EPA won't know the scope of its regulatory
authority until the spring, and whatever authority remains after
the case is resolved will "almost undoubtedly be less than what the
EPA would like."
"It is unlikely the Court would have granted certiorari unless
at least four justices were sufficiently concerned with the D.C.
Circuit's expansive interpretation of the EPA's regulatory
authority that they saw the need to intervene now," he added.
The West Virginia petition was backed by the National Mining
Association and a trade group by the name of America Power that
represents plants generating electricity from coal. The EPA as well
as the cities of Boulder, Chicago, Denver, New York, South Miami,
Philadelphia, and the District of Columbia joined a 22-state
coalition led by New York state that opposed the petition.
Environmental groups including the EDF and clean energy trade
associations including the American Clean Power Association also
opposed it as did power companies involved in generation and
transmission including Exelon, Consolidated Edison, New York Power
Authority and National Grid USA.
Posted 29 October 2021 by Amena Saiyid, Senior Climate and Energy Research Analyst