Federal circuit court scraps Trump administration power plant rules

“Today’s decision is the perfect Inauguration Day present for America,” said Ben Levitan, a senior attorney at the Environmental Defense Fund. “It confirms that the Trump administration’s dubious attempt to get rid of common-sense limits on climate pollution from power plants was illegal.”

The Obama-era Clean Power Plan had mandated that power plants make deep, 32 percent reductions in emissions below 2005 levels by 2030. The plan gave states wide flexibility in figuring out how best to meet the new targets, but most coal plants would have been forced into retirement.

The Clean Power Plan, however, ran into legal difficulties in 2016, and the issues were not resolved before Trump came into office. Trump Environmental Protection Agency administrator Andrew Wheeler, a former coal lobbyist, signed the new Trump rule in June 2019, saying that it would lower electricity costs and that the Obama EPA had overreached.

The Circuit Court of Appeals for the District of Columbia, however, said Tuesday that the goal of the Trump administration’s EPA had been “to slow the process for reduction of emissions” and the court called that “arbitrary and capricious.”

The three-judge panel said Trump’s EPA “has the legal authority” to adopt new rules regulating those emissions, but that “the central operative terms” of the Trump rule “hinged on a fundamental misconstruction” of the Clean Air Act.

Sen. Thomas R. Carper (Del.), the top Democrat on the Senate Environment and Public Works Committee, said that the Trump administration rule was “based on a clear misinterpretation of the Clean Air Act.” Carper said “the D.C. Circuit has made clear that EPA can’t turn its back on the agency’s mission to reduce climate pollution.”

EPA had said that the Trump rule “restores rule of law, empowers states, and supports energy diversity.”

But Howard Learner, executive director of the Environmental Law & Policy Center, said that the Trump administration “undercut the agency’s responsibility under the Clean Air Act to reduce carbon pollution from coal plants.” He said “this comprehensive court decision clears away the legal underbrush from the Trump administration’s obstructionism.”

Kevin S. Minoli, a partner at the law firm Alston & Bird, said that “for most regulations, EPA must go through the time and resource-intensive process of notice and comment rulemaking if it wants to change a rule.” But unlike the EPA, “courts can make an existing regulation go away with the stroke of a pen by issuing an order vacating it.”

He cautioned, however, that “whether such an order will be seen as a good thing by the Biden administration will depend on the specific circumstances of each regulation.”

Even before the court ruling Tuesday, coal consumption was plunging. The Energy Information Administration, part of the Energy Department, said that over the past five years, coal-fired power plants with 48 gigawatts of capacity had closed down and that this year it expected another 2.7 gigawatts of reductions equal in size to about four or five typical plants.

These retirements will come primarily from older units. The EIA said that the capacity-weighted average age of retiring coal units is more than 51 years old. Nearly two-thirds of the capacity retirements are located in just four states: Maryland, Florida, Connecticut, and Wisconsin, the agency said.

The National Mining Association, which represents the coal-mining sector, said it was discouraged by the court decision that may result in tougher regulations on power plants that burn coal. “We are disappointed in and disagree with the ruling, which we are still reviewing, and are exploring our options for next steps,” said spokesman Conor Bernstein.

Some lawmakers lamented the Tuesday court ruling. Sen. Shelley Moore Capito (R-W.Va.) called it “a disaster for regulatory certainty in the power sector, particularly for coal production and generation states.”

The decision does not mean entirely smooth sailing for the incoming Biden administration as it pursues its own climate agenda. In an opinion dissenting from part of Tuesday’s decision, Judge Justin Walker argued the EPA never had the authority to enact Obama’s Clean Power Plan in the first place.

Noting that Walker is a Trump appointee and former clerk to Supreme Court Justice Brett M. Kavanaugh, Columbia Law School professor Michael Gerrard said the dissent “could be a bad sign for how the Supreme Court might rule if these issues ever go there.”

Jeff Holmstead, a partner at the law firm Bracewell and who represents energy companies, said that “today’s ruling is a big loss for the Trump administration, but it’s probably not the last word on the matter.” He noted that the Supreme Court before Trump “stopped the Clean Power Plan from coming into effect” while litigation proceeded. “The current Supreme Court is likely to be even more skeptical,” he said.

Dino Grandoni contributed to this report.

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