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Why it Matters
The Clean Power Plan (CPP) was the key US effort to reduce carbon emissions and meet international climate commitments, promising to lower emissions from the power sector 32% from 2005 levels by 2030. The rule allowed states flexibility to create their own plans to achieve the necessary reductions. The Trump administration’s rollback of the CPP undermined US emissions reduction targets and created uncertainty for power producers. The administration’s replacement, the Affordable Clean Energy (ACE) rule was projected to reduce carbon emissions by 0.7% by 2030 as it relied only on heat-rate improvement technologies and practices. On Jan. 19, 2021, the D.C. Circuit held that EPA erroneously concluded that “the statutory text expressly foreclosed consideration of measures other than those that apply at and to the individual source.” The court vacated and remanded the ACE rule to EPA.
Our white paper, “EPA’s House of Cards: the Affordable Clean Energy Rule”, analyzes the risky legal strategy EPA used to repeal the Clean Power Plan and craft the ACE rule. Read it here.
In response to the vacatur and remand of ACE, on Feb. 12, 2021, EPA issued a memorandum to its regional administrators explaining that the D.C. Circuit opinion did not reinstate the CPP and states are not expected to develop and submit plans as would have been required under the CPP.
Several states and industry petitioners have filed a petition for writ of certiorari, or briefs supporting the petition, arguing that the D.C. Circuit was wrong to decide that the Clean Air Act does not constrain EPA, in deciding what constitutes the “best system of emission reduction” for power plants. Responses opposing the petitions to the Supreme Court were due on August 6, 2021.
Timeline of Events
Obama administrationRead more
Oct. 23, 2015 EPA publishes the Clean Power Plan (or the “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units”). The rule sets carbon pollution limits on existing power generators. Some states and industry groups immediately challenge the rule in the DC Circuit Court. West Virginia v. EPA, Case No. 15-1363 (D.C. Cir.).
Jan. 21, 2016 The DC Circuit Court rejects calls for a stay (suspension) of the rule.
Feb. 9, 2016 The Supreme Court issues a stay of the Clean Power Plan to keep it on hold through review at the DC Circuit and extend through review at the Supreme Court if it is appealed and accepted. Scholars note this might be the first time the Supreme Court ever stayed a rule before any court ruled on the merits.
Sep. 27, 2016 The DC Circuit hears oral arguments on the Clean Power Plan.
Trump AdministrationRead more
March 28, 2017 President Trump signs the Executive Order on Promoting Energy Independence and Economic Growth, directing EPA to review and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the Clean Power Plan. EPA asks the DC Circuit to halt deliberations while they review the rule.
April 4, 2017 EPA publishes a brief notice of its intention to review the CPP, noting that it will assess whether the rule or alternative approaches respect state authority, support economic growth, and “…maintain the diversity of reliable energy resources and encourage the production of domestic energy sources to achieve energy independence and security.”
April 28, 2017 At the request of the Trump Administration, the DC Circuit suspends the litigation for 60 days and orders EPA to file 30-day status reports on the agency’s review of the rule. The court also asks the parties to file briefs to address whether the rule should be returned to EPA in lieu of continued suspension of the litigation.
May 15, 2017 EPA files a brief arguing the case should remain suspended to preserve the Supreme Court’s stay. Environmental groups seek a remand to EPA to lift the stay and require the agency to go through a rulemaking process to repeal the Clean Power Plan. The states and environmental groups supporting the CPP also ask the DC Circuit to rule on the merits of the case, arguing the same issues will reappear in any new rule issued under this section of the Clean Air Act.
May 30, 2017 EPA files its first status report with the DC Circuit indicating the Clean Power Plan is under review.
June 12, 2017 EPA files a supplemental status report alerting the Court that it has submitted a proposed regulatory action on the Clean Power Plan to the White House for review.
June 16, 2017 Environmental groups file a response to EPA’s supplemental status report noting that EPA still has no timetable for finalizing a Clean Power Plan replacement.
June 29, 2017 EPA files a second status report that indicates no progress had been made.
Aug. 8, 2017 The Court determines the case should remain suspended for another 60 days. Judges Millett and Tatel concur in the order but add that “[a]s this court has held the case in abeyance, the Supreme Court’s stay now operates to postpone the application of the Clean Power Plan indefinitely while the agency reconsiders and perhaps repeals the Rule… Combined with this court’s abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future.”
Sep. 7, 2017 EPA files a status report that says they plan to file a proposed rule in “the Fall of 2017” and asks for the case to remain on hold.
Oct. 10, 2017 EPA releases a proposal to repeal the Clean Power Plan, saying the rule “exceeds the Agency’s statutory authority.” EPA does not release a replacement rule, but states that it will issue an Advanced Notice of Proposed Rulemaking to solicit comments on carbon control measures that could be implemented at individual power plants. EPA takes comments on the proposed repeal until April 26, 2018. The agency announces public hearings on the rollback in West Virginia on November 28–29, 2017.
Oct. 17, 2017 A group of states and environmental and public health groups asks the DC Circuit court to rule on the case now, or to limit any further delays to 120 days.
Nov. 10, 2017 The Court determines the case should remain suspended for another 60 days.
Dec. 6, 2017 EPA announces three additional public meetings on the proposed repeal of the CPP in Missouri, Wyoming, and California.
Dec. 18, 2017 The agency issues an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants.
Dec. 28, 2017 The agency publishes an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants. EPA takes comments on the Advance Notice of Proposed Rulemaking until February 26, 2018.
Jan. 9, 2018 A coalition of states and municipalities, led by California and including Delaware, Hawaii, Illinois, Maine, Maryland, New Mexico, New York, Oregon, Vermont, Washington, the Commonwealth of Massachusetts, the District of Columbia, the County of Broward (Florida), and the Cities of Boulder, Chicago, New York, Philadelphia, and South Miami file a formal request calling for the recusal of Administrator Scott Pruitt from the effort to repeal the Clean Power Plan, arguing that his leading role in the lawsuits that halted the Clean Power Plan make him biased in the new rulemaking process.
Jan. 30, 2018 After swearing in a new governor and state attorney general, New Jersey files a motion to be removed from the lawsuit opposing the Obama-era Clean Power Plan.
Feb. 1, 2018 EPA publishes a Federal Register notice stating it is reopening the public comment period for the proposed repeal through April 26, 2018 (it originally closed in January).
June 27, 2018 The DC Circuit grants another stay in the Clean Power Plan litigation before the court, but two judges express concern about the continued delay and state that they will not vote to grant another stay in the future.
July 9, 2018 EPA submits its proposed rule to replace the Clean Power Plan to the White House Office of Management and Budget for review. After the review, the proposed rule will be published in the Federal Register and open for comment.
Aug. 21, 2018 EPA announces the proposed replacement rule, the Affordable Clean Energy (ACE) Rule. The ACE rule has several components: a determination of the best system of emission reduction for greenhouse gas emissions from coal-fired power plants limited to modifications that can be made “within the fenceline” of each plant, a list of “candidate technologies” states can use when developing their plans, a proposed change to the New Source Review program: a new applicability test based on hourly emissions for determining whether a physical or operational change made to a power plant may be a “major modification” triggering NSR, and new implementing regulations for emission guidelines under Clean Air Act section 111(d). The proposed rule is published in the Federal Register. The public comment period is open for 30 days until Oct. 1, 2018.
Aug. 24, 2018 EPA submits a status update to the DC Circuit in its Clean Power Plan case, pointing to the proposed ACE Rule as support for continuing the stay. EPA also reiterated its prediction that the final rule would be completed in the beginning of 2019.
Oct. 31, 2018 The attorneys general of 26 states and municipalities submit a comment to EPA asserting their opposition to the repeal of the Clean Power Plan and the proposed Affordable Clean Energy rule.
Jan. 22, 2019 After swearing in a new Governor and Attorney General, Michigan files motions to be removed from two lawsuits opposing the Clean Power Plan.
Jan. 26, 2019 Under a new Governor and Attorney General, Colorado seeks to withdraw from a lawsuit challenging the Clean Power Plan.
Feb. 22, 2019 Gulf Power Co., a Florida utility now owned by NextEra Energy Inc., gives notice that it will withdraw from litigation challenging the Clean Power Plan.
April 26, 2019 EPA sends the final Affordable Clean Energy (ACE) Rule to the White House Office of Management and Budget for review. This is generally the last step before a final rule is published and goes into effect.
May 15, 2019 Nevada seeks to withdraw from the DC Circuit case challenging the Clean Power Plan. The state filed an amicus brief supporting the states opposing the rule, but now has a new Governor and Attorney General.
June 19, 2019 EPA releases the final ACE Rule along with the final repeal of the Clean Power Plan. These final rules become effective 60 days after publication in the Federal Register.
July 8, 2019 The final rule is published in the Federal Register and becomes effective on Sept. 6, 2019.
July 8, 2019 Two public health organizations, American Lung Association and American Public Health Association, file a petition challenging the ACE Rule in the DC Circuit.
Aug. 13, 2019 Twenty-two states and seven cities file a petition challenging the ACE Rule in the DC Circuit.
Aug. 14, 2019 Ten environmental organizations file a petition challenging the ACE Rule in the DC Circuit.
Sep. 5, 2019 Three industry groups file petitions in the DC Circuit challenging EPA’s authority to regulate carbon dioxide emissions in the ACE Rule. Cases 19-1175, 19-1176, and 19-1179 all consolidated in American Lung Association v. EPA, Docket No. 19-01140 (D.C. Cir.). Oral argument in the case has been scheduled for Oct. 8, 2020.
Sep. 17, 2019 The DC Circuit dismisses the Clean Power Plan case as moot, meaning there is no longer an active case because the Clean Power Plan has officially been repealed. West Virginia v. EPA, Case No. 15-1363 (D.C. Cir.).
Oct. 7, 2019 A coalition of 30 states and cities, led by New York, seeks to intervene in the industry challenges against ACE to defend EPA’s authority to regulate carbon dioxide emissions from fossil-fueled power plants.
Sep. 20, 2019 Environmental organizations request that litigation of the ACE Rule be paused until the agency completes its proposed changes to the New Source Review program, as previewed in the proposed ACE Rule. The states make a similar request on Sep. 25, 2019. American Lung Association v. EPA, Docket No. 19-01140 (D.C. Cir.).
Nov. 22, 2019 The DC Circuit decides that the ACE Rule litigation will not be paused (held in abeyance) until the New Source Review changes are finalized, as requested by environmental groups and states. The court also decides that the case will not be expedited, as requested by EPA. The case will proceed normally. American Lung Association v. EPA, Docket No. 19-01140 (D.C. Cir.).
Oct. 8, 2020 The DC Circuit holds oral arguments in the case challenging the repeal of the Clean Power Plan and the ACE Rule which last over nine hours. DOJ attorneys defend EPA’s narrower approach to regulating greenhouse gas emissions from coal-fired power plants. States and environmental groups question the legality and adequacy of the ACE rule and argued for a broader regulatory approach. Listen to the audio recording of arguments here. American Lung Association v. EPA, Docket No. 19-01140 (D.C. Cir.).
Jan. 19, 2021 The D.C. Circuit strikes down the ACE rule, remanding it to the agency, saying ““[t]he EPA rewrites rather than reads the plain statutory text.”
Biden AdministrationRead more
Feb. 22, 2021 The D.C. Circuit agrees to stay its mandate vacating the Clean Power Plan Repeal Rule until EPA responds to its remand with a new rulemaking to avoid confusion about what rule is in place, making clear that the Clean Power Plan was not revived by the decision. EPA is required to file its first status report in 90 days.
April 29, 2021 A group of states led by West Virginia petition the Supreme Court asking that it address the question of whether § 111(d) of the Clean Air Act allows for the type of generation shifting envisioned in the Clean Power Plan, arguing the decision vacating the ACE rule improperly attributed wider authority to the agency than Congress intended. West Virginia, et al., Petitioners vs. Environmental Protection Agency, et al., Docket No. 20-1530 (U.S. May 4, 2021).
April 30, 2021 North American Coal Corp. files a petition arguing that section 111 does not authorize EPA to impose standards based on “an industry-wide system of ‘generation shifting’—a cap-and trade-style regime.” The North American Coal Corporation v. Environmental Protection Agency, et al., Docket No. 20-1531 (U.S. May 4, 2021)
May 28, 2021 The National Mining Association submits a brief in support of the states’ petition to the Supreme Court arguing that Congress did not authorize EPA to regulate the power sector under § 111(d) of the Clean Air Act in the manner it did so in the Clean Power Plan.
June 2, 2021 Basin Electric Power Cooperative submits a brief in support of the states’ petition to the Supreme Court.
June 18, 2021 North Dakota and Westmoreland Mining Holding file petitions concerning the scope of EPA’s authority under Section 111. North Dakota v. Environmental Protection Agency, et al., Docket No. 20-1780 (U.S. June 23, 2021); Westmoreland Mining Holdings LLC, v. Environmental Protection Agency, et al., Docket No. 20-1778 (U.S. June 23, 2021)
Aug 25, 2021 The petitions for writ of certiorari are distributed for the Sept 27, 2021 conference.