Conservatives, coal groups fight Trump carbon rule in court

Source: By Kelsey Brugger, E&E News reporter • Posted: Wednesday, September 11, 2019

Amid a crowded field of legal challenges aimed at taking down EPA’s Clean Power Plan replacement, conservative groups and coal companies are carving out an argument that the Trump rule exceeds EPA authority in regulating emissions from coal-fired power plants.

Two free-market think tanks — the Competitive Enterprise Institute and the Texas Public Policy Foundation — joined a petition filed in the U.S. Court of Appeals for the District of Columbia Circuit last Thursday against EPA’s Affordable Clean Energy rule. A pair of coal mining interests lodged similar complaints.

Environmental groups and blue states, meanwhile, are mounting a case that the ACE rule undercuts EPA’s authority both under the Clean Air Act and state clean energy laws (Energywire, Sept. 9)

The Obama climate plan capped emissions while the Trump ACE rule does not. Critics say ACE could ultimately prolong the life of coal-fired power plants.

The conservative groups declined to comment beyond a two-page legal filing. In the past, they have said Trump’s ACE rule is wildly better than Obama’s Clean Power Plan, with CEI senior fellow Marlo Lewis calling it a “massive improvement” in a July 9 blog post.

“[ACE] repudiates the Obama-era EPA’s unlawful ambition to play electricity czar to the states, rescinds the CPP’s impermissible imposition of unattainable standards on fossil fuel power plants, and establishes a regulatory roadblock to any future administration tempted to resume the war on coal,” he wrote.

But, Lewis added, “ACE retains one of the Clean Power Plan’s fatal legal flaws” related to the fine print of the Clean Air Act.

CEI claims EPA is prevented from regulating coal-fired power plants under Section 111(d) of that law because those sources are already covered under Section 112, which regulates mercury.

The North American Coal Corp., which operates coal surface mines in four states, argued in yesterday’s legal filing that the industry has been “subject to considerable uncertainty since at least 2014, when EPA first proposed new rules for existing coal-powered plants as part of the Clean Power Plan.”

Specifically, attorney Charles Wehland objected in the filing to “EPA’s failure to make an essential threshold determination prior to issuing the Affordable Clean Energy Rule.” The Clean Air Act allows EPA to establish a performance standard for pollutants only if those pollutants “may reasonably be anticipated to endanger public health or welfare,” he said.

Westmoreland Mining LLC, a major U.S. coal producer, also joined the legal battle against ACE.

It remains to be seen what other arguments will emerge. Erik Baptist, an attorney at Wiley Rein LLP and former Trump EPA official, noted that the Clear Air Act sections outlining power plant regulations are “very jumbled.”

In fact, then-Judge Brett Kavanaugh expressed befuddlement during oral arguments before the D.C. Circuit in September 2016 when the state of West Virginia was challenging Obama’s Clean Power Plan. When discussing the law, Kavanaugh, who now sits on the Supreme Court, said one would “need a stiff drink after going through every amendment that’s been cited in the footnotes to the briefs.”

Reporter Pamela King contributed.