A federal appeals court has rejected the Trump administration’s rewrite of carbon standards for power plants, dealing a blow to President Trump’s energy agenda on his last day in office.
In a unanimous ruling on Tuesday, a three-judge panel on the D.C. Circuit Court of Appeals struck down the Environmental Protection Agency’s rule, known as the Affordable Clean Energy rule, and sent it back to the agency for a rewrite.
The court’s ruling opens the door for the incoming Biden team to set tighter carbon controls for power plants much more quickly. President-elect Joe Biden has promised the most aggressive climate agenda of any president, and he has pledged to move toward a carbon-free power sector by 2035.
His incoming EPA team will now be able to start work immediately on stricter carbon emissions limits rather than taking many months to peel back the Trump-era rule first.
EPA Administrator Andrew Wheeler had touted the Affordable Clean Energy rule as a crowning achievement of the Trump administration’s deregulatory push. The rule replaced the Obama-era centerpiece climate rule, called the Clean Power Plan, which had set first-time carbon emissions limits for the power sector.
The Obama-era rule took a sweeping approach, allowing utilities to reduce emissions by switching from coal to cleaner fuels such as natural gas and renewables. By contrast, the Trump administration’s rule looked much more narrowly, requiring only what emissions cuts power plants could achieve through efficiency improvements.
In fact, the Trump EPA argued that such narrow requirements were the only approach the Clean Air Act allowed. Environmental activists, a group of left-leaning state attorneys general, and clean energy companies all challenged that view. Right-leaning attorneys general and more fossil fuel-intensive energy companies backed the Trump administration.
In its opinion Tuesday, the D.C. Circuit judges said the Trump EPA’s rule “hinged on a fundamental misconstruction” of the Clean Air Act.
“In addition, the ACE Rule’s amendment of the regulatory framework to slow the process for reduction of emissions is arbitrary and capricious,” the opinion stated.
Two Obama-appointed judges, Judge Patricia Millett and Judge Cornelia Pillard, and one Trump-appointed judge, Judge Justin Walker, heard the case.
The opinion found several flaws in the EPA’s argument, including that the Trump approach would unlawfully constrain the agency to look only at what power plants can achieve by improving their heat rate or how efficiently they run.
Very few utilities, however, are relying on that approach to cut their emissions, as the court noted. Instead, many power companies are abandoning coal-powered facilities in favor of cleaner-burning natural gas and renewable energy.
“In other words, the EPA reads the statute to require the Agency to turn its back on major elements of the systems that the power sector is actually and successfully using to efficiently and cost-effectively achieve the greatest emissions reductions,” the D.C. Circuit opinion read.
While the D.C. Circuit’s ruling is undoubtedly a boost for the Biden team, it isn’t clear whether the courts will look fondly on a reprise of the Obama-era approach either. The Supreme Court in 2016, in a rare out-of-turn move, paused the Clean Power Plan from going into effect before even the lower court considered its legal merits.
Opponents have cited that move as proof that the Supreme Court was skeptical of the Obama administration’s broad approach to cutting power plant emissions.
The high court has only gotten more conservative-leaning since then, due to Trump’s three appointments of justices who are likely to take a narrower view of the EPA’s authority to regulate greenhouse gases.
Walker, the Trump-appointed D.C. Circuit judge, rejected the ACE rule for a reason different from his colleagues.
In an opinion, dissenting in part, he argued neither the ACE rule nor the Clean Power Plan are lawful because the EPA doesn’t have the authority to regulate power plants’ carbon emissions under the section of the Clean Air Act it chose to use. A handful of coal companies had made that argument before the court.
Nonetheless, Biden has tapped the architects of the Clean Power Plan, former EPA Administrator Gina McCarthy, and former EPA air chief Janet McCabe, for his climate team to help him navigate those legal contours. McCarthy will serve as Biden’s national climate adviser, overseeing his domestic climate agenda, and McCabe has been nominated to be the EPA’s deputy.
