The Future of the ACE Rule vs. the Clean Power Plan at EPA

Greenhouse gas reductions are urgent (urgent)!

Letter to Editor by Betsy Lawson, Morgantown Dominion Post, January 31, 2021

While I generally appreciate Hoppy Kercheval’s Friday columns, the Jan. 22 column was disappointing. A federal court recently decided to throw out the deceptively named ACE (Affordable Clean Energy) rule. To say this is a curve ball to West Virginia utilities ignores the obvious.

If Trump’s EPA had kept the original Clean Power Plan, then utilities, rate payers and West Virginia policy makers would have had a predictable regulatory guideline to work within all along, instead of the whipsaw approach about which Mr. Kercheval complains.

The ACE Rule attempted to get rid of commonsense limits on climate pollution from power plants. The Biden administration recognizes the critical need to reduce greenhouse gases now. The world’s ice is melting, ocean levels are rising and warming up and the many intricate systems that compose the earth’s climate are being thrown out of whack as a direct result of pumping too much carbon dioxide and methane into the atmosphere.

West Virginia utilities have seen this coming for years and should have been making the transition to renewable sources long ago. Their failure to do so is a disservice to the people of West Virginia and to their own employees.

Betsy Lawson, Morgantown, WV

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See also: The EPA’s Clean Power Plan Is Only Mostly Dead | Vinson & Elkins LLP – JDSupra Legal News, February 2, 2021

“It just so happens that your friend here is only mostly dead. There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.” — Miracle Max, The Princess Bride

The Obama administration’s Clean Power Plan (“CPP”) — an unprecedented use of the Clean Air Act to regulate greenhouse gas (“GHG”) emissions from power plants — is only “mostly dead” and could soon spring back to life. Yes, the Supreme Court stayed the CPP in 2016. And yes, the Trump administration’s Affordable Clean Energy rule (“ACE”) repealed the CPP in 2019. Between those two actions, the CPP seemed “all dead.” But the Supreme Court’s stay has almost certainly been dissolved, and the D.C. Circuit is on the verge of vacating ACE’s repeal of the CPP. If and when that happens, the CPP will return to legal life. Whether and how the CPP stays dead has important consequences for the Biden administration’s efforts to (re)impose GHG emission limitations on power plants.

What circumstances could resuscitate the CPP, and what its final fate means for the Biden administration’s use of the Clean Air Act to impose GHG control measures? Part I provides regulatory context and Part II summarizes the D.C. Circuit’s decision on the ACE rule — readers familiar with these proceedings may safely pass over these parts. Part III discusses how the next steps in litigation over ACE will affect whether the CPP regains life. Part IV outlines options the Biden EPA has to (re)impose GHG emission limitations under the Act, depending on the outcome of the ACE litigation.

https://www.jdsupra.com/legalnews/the-epa-s-clean-power-plan-is-only-2033530/