A federal appeals court overturned the Trump administration’s regulatory replacement for the Clean Power Plan, an Obama administration rulemaking that set standards tough enough to drive more switching of US power production from use of coal to natural gas and renewables.
The Trump administration issued its Affordable Clean Energy (ACE) rule in June 2019 and published it in the Federal Register July 8, 2019. It was challenged in court by a mix of state and local governments, power utilities, renewable power associations, and environmental and health groups.
The US Court of Appeals for the District of Columbia Circuit ruled Jan. 19 that the Environmental Protection Agency (EPA) based its 2019 rule on an interpretation of the Clean Air Act that incorrectly concluded EPA lacked the authority to impose the more demanding rules adopted by the Obama administration.
The court vacated and remanded the 2019 rule. The case is American Lung Association v. EPA.
The Obama administration’s 2015 rule included requirements for emission reductions that were expected to force more “generation shifting” from coal-fired power generation to gas fired power production, as well as some shifting from either of those power sources to renewables.
While the Trump administration contended that EPA in 2015 was overreaching its authority under Section 7411 of the Clean Air Act, the court disagreed.
The law “simply does not unambiguously bar a system of emission reduction that includes generation shifting,” the court said.
Split decision by court
One of the three judges on the DC Circuit panel disagreed not on the interpretation of Section 7411 but on another issue that has been argued ever since the 2015 rule came out and was argued again in this case.
“Coal-fired power plants already were regulated under Section 112, and Section 111 excludes from its scope any power plants regulated under Section 112,” wrote Judge Justin Walker in a partial dissent.
Because both the Obama and Trump administrations had based their regulations on Section 111 authorities, both were contrary to the law, Walker wrote, concluding that EPA correctly repealed the 2015 rule but improperly devised its 2019 rule.
Walker was nominated to the bench by President Trump. The two judges in the majority on the panel, Patricia Millett and Cornelia Pillard, both were nominated by President Barack Obama. That did not go unnoticed on Capitol Hill.
“Two activist judges on the court seem intent on clearing the decks for the incoming Biden administration to issue punishing new climate regulations,” said Sen. John Barrasso (R-Wyo.), in a statement responding to the ruling. “Such regulations will result in fewer jobs and higher energy costs.”
