A three judge panel of on the U.S. Court of Appeals for the D.C. Circuit struck down the Trump administration’s Affordable Clean Energy (ACE) Rule, limiting carbon dioxide emissions from power plants. The ACE rule was offered as a replacement for the Clean Power Plan (CPP), developed by the U.S. Environmental Protection Agency (EPA) under former President Barack Obama. The Trump administration had refused to defend the CPP in court against lawsuits challenging its legality filed by numerous states and industries.
‘Mistaken Reading of the Clean Air Act’
The majority opinion, endorsed by two Democratic appointees and rejected, in part, by a judge appointed by Trump, said the ACE rule failed to comply with the 1970 Clean Air Act by not adequately protecting the environment and public health from harm.
“The question in this case is whether the Environmental Protection Agency [EPA] acted lawfully in adopting the 2019 Affordable Clean Energy Rule [ACE Rule], as a means of regulating power plants’ emissions of greenhouse gases. It did not,” said the unsigned opinion majority opinion. “Because promulgation of the ACE Rule and its embedded repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act, we vacate the ACE Rule and remand to the Agency.”
Judge Justin Walker, appointed by Trump, dissented from the reasoning of the majority’s opinion overturning ACE, while endorsing the result. Walker found both the CPP and the ACE rule violated the law.
“In my view, the EPA was required to repeal the first rule [CPP] and wrong to replace it with provisions promulgated under [section] 111. That’s because coal-fired power plants are already
regulated under [section] 112, and 111 excludes from its scope any power plants regulated under 112. Thus, the EPA has no authority to regulate coal-fired power plants under 111.”
Ruling Creates ‘Uncertainty’
The ACE rule was well founded, said Molly Block, EPA deputy associate administrator, in a statement issued in response to the court’s ruling.
“We are disappointed that the panel majority rejected EPA’s well-supported repeal of the Clean Power Plan and its regulation of [greenhouse gases] from coal-fired power plants in the Affordable Clean Energy Rule,” said Block. “The decision risks injecting more uncertainty at a time when the nation needs regulatory stability. EPA is reviewing the decision and will explore all available litigation options.”
Because, due to litigation, the CPP never came into actual effect, unless EPA successfully challenges the D.C. Circuit court’s decision and has the ACE rule reinstated, the way is now clear for the new Biden administration to begin the rule making process setting limits it believes are legally required on greenhouse gas emissions from power plants.
H. Sterling Burnett, Ph.D. (hsburnett@heartland.org) is the managing editor of Environment & Climate News.
To consider carbon dioxide an atmospheric pollutant at all is ridiculous. It has always and continues to be a natural part of the atmosphere. It is used by plants for life. It is breathed out by mammals (including humans) as part of normal respiration. Trying to limit it under the 1970 Clean Air Act is silly. Clean air includes carbon dioxide. Further, nobody can say what the correct percentage of the air SHOULD be carbon dioxide. There is evidence that the (very small) increase in CO2 posited by the climate change lobby is having a positive effect on crop yields worldwide. As for warming, the human historical record indicates that human civilization has thrived during periods of warming and retrenched during periods of cooling. Finally, the percentage of carbon dioxide in the air if very small. The percentage of that small portion of the atmosphere that is carbon dioxide generated by human activity is even smaller. It is progressive hubris to believe humans have the ability to positively effect the ever changing climate on earth.