Legal war on the Clean Power Plan is over — sort of

Source: By Niina H. Farah, E&E News reporter • Posted: Wednesday, September 18, 2019

Litigation over the Clean Power Plan may have officially come to an end yesterday, but some of the key issues about the legality of the rule will still be up for review in the lawsuit over its replacement.

The U.S. Court of Appeals for the District of Columbia Circuit ruled yesterday that the consolidated litigation over the Obama administration’s rule on carbon emissions from power plants was now moot (E&E News PM, Sept. 17).

Attorneys tracking the case say the decision was expected now that the agency had finalized its repeal of the Clean Power Plan and replaced it with the Affordable Clean Energy rule. They said the court will still have to make a decision on the best approach for power plants to cut carbon emissions that is allowable under the Clean Air Act.

A spokesperson for EPA said the agency was pleased with the court’s decision to dismiss the challenges to the Clean Power Plan.

“This ends an era of a regulation that lacked sufficient legal support and attempted to assert broad EPA regulation over the energy sector of our economy,” the spokesperson said in an emailed statement. “We look forward to turning the page and defending the Affordable Clean Energy Rule in the courts. We are confident that ACE provides a more balanced policy approach and will survive judicial review.”

Jeff Holmstead, a partner at the law firm Bracewell LLP, argued that environmental groups had wanted to consolidate litigation on the Clean Power Plan with litigation on the Affordable Clean Energy rule in an effort to keep Justice Brett Kavanaugh, a Trump administration appointee, from being a part of any Supreme Court challenge to the high-profile rulemaking.

“They could then argue, if the case eventually goes to the Supreme Court, that Justice Kavanaugh should be recused, since he was on the D.C. Circuit when the CPP litigation was argued to the en banc court,” he said in a statement on the court’s decision. “This was always a stretch, but today’s decision completely eliminates this possibility.”

But David Doniger, senior strategic director of the Natural Resources Defense Council’s climate and clean energy program, made no mention of such a possibility in discussing implications of yesterday’s ruling.

Doniger said the decision to dismiss the case as moot would not have an effect on the case against the CPP repeal and the ACE rule.

“The real goal for the Trump administration is to try to lock in an interpretation of the Clean Air Act that would result in do-nothing standards,” he said.

He pointed out that a number of top officials involved in the ACE rule had been among those opposed to the Clean Power Plan when it was unveiled in 2015.

Third time

A former EPA official said some of the issues before the D.C. Circuit in the ACE litigation would be familiar to the federal appeals court.

“The reality is that this litigation will be the third time that the D.C. Circuit will be hearing a dispute about what counts as the best system of emissions reductions from power plants under Section 111(d) [of the Clean Air Act],” said Joseph Goffman, a former senior EPA official under the Obama administration.

The Obama administration favored a system allowing states to use carbon trading and fuel switching to cut emissions. The Trump administration has taken a much more narrow view that technical fixes at the facility level are the only allowable approach.

The D.C. Circuit had also addressed the question of the best system of emissions reductions in separate litigation over a rule on toxic air pollution from power plants, Goffman added.

Other opponents of the Clean Power Plan cheered the court’s decision yesterday.

The National Association of Manufacturers was among those pleased with the ruling. The group had challenged the rule, saying it had exceeded EPA’s authority and would put manufacturing jobs at risk.

“With the EPA’s recent finalization of the replacement Affordable Clean Energy Rule, the NAM and other industry and state groups asked the D.C. Circuit Court of Appeals to dismiss the case as moot, and we are glad they did so today,” said Peter Tolsdorf, NAM’s vice president of litigation and deputy general counsel, in a statement.