10/22/2019 - Legal Analysis - White Paper

EPA’s House of Cards: the Affordable Clean Energy Rule

by Caitlin McCoy, Joe Goffman

In our white paper, we discuss EPA’s Repeal of the Clean Power Plan and Affordable Clean Energy rule. We examine EPA’s legally risky strategy in these final rules to curtail its authority under the Clean Air Act. EPA argues that its interpretation of subsections 111(a)(1) and (d) of the Clean Air Act reflects the “plain meaning” of “unambiguous” statutory language. EPA does not give the D.C. Circuit a basis for deferring to the agency and upholding its interpretation of section 111.

We explore why the agency may have decided to take this risky approach and why it may have been forced to do so by the rulemaking record. The agency offered a number of points in support of its reading that are clearly strained, and give challengers ample opportunity to raise doubts about EPA’s position. EPA is taking a risk that the rule will be remanded, or even vacated, given the D.C. Circuit’s long-standing Chevron Step 1.5 approach when reviewing agencies’ statutory interpretation.

See the full paper here.