ACE Rule Heads to Court

by Eric Wolff (Politico's Morning Energy) The Trump carbon rules for power plants goes to court in a mirror image of the case from 2016 when the Obama administration's more stringent rules faced the judges. -- ... It's déjà vu all over again for the D.C. Circuit Court of Appeals as a panel of three judges hear challenges to EPA's Affordable Clean Energy rule, the Trump administration's version of the carbon emission rules for power plants. The most critical issue in the case will be how the judges determine the boundaries of EPA's authority to regulate carbon dioxide under the Clean Air Act, as Pro's Alex Guillén reports.

Good fencelines make good power plants: The Trump EPA, in setting laxer CO2 rules than called for under the Obama Clean Power Plan, argues its authority is limited to individual coal power plants, known as "inside the fenceline". The Obama rule saw the electric grid as a large system and took an approach that would have been curbed emissions from the sector overall -- "outside the fenceline" -- which would likely have pushed high-emitting coal plants into retirement. A ruling by the court could determine how much latitude EPA gets under the Clean Air Act — a question central to whether a potential Biden administration could put its climate priorities in place.

For two of the judges, Thursday's arguments will truly be a repeat, as Alex writes. Patricia Millett and Nina Pillard, both Obama appointees, spent seven hours grilling government and industry attorneys back in 2016 over the Clean Power Plan. The judges never got to submit a ruling as the arguments took place shortly before Donald Trump won the White House and withdrew the rule. The parallels to the timing of today's arguments, less then a month before a presidential election, are lost on no one. There is one person new to the game: newly minted Trump appointee judge Justin Walker. READ MORE

Excerpt from Politico's Morning Energy: ACE MARATHON: The D.C. Circuit Court of Appeals outdid itself Thursday, investing nine hours to debating the expanse of EPA's authority to limit carbon dioxide emissions, and Pro's Alex Guillén listened to every minute . The panel appeared frustrated by how little the ACE rule forces states to do to limit emissions, aggravating even Trump appointee Justin Walker. "I think that’s really hard to wrap my head around," Walker said. "We’re talking about a program to reduce air pollution and it doesn’t even require you to consider how much… pollution you’re reducing?"

He was supported by the Judges Patricia Millett and Nina Pillard, who believed EPA could at least force industries to pollute less. “The Clean Air Act gets to step in and set standards for what you’re allowed to put into the air. Then your choices are within that range. You have to meet that target,” Millett said. The law “has long been recognized” to force industries to adopt pollution control technologies and strategies they otherwise would not.

Walker also worried that the ACE rule was so loose that while a Trump EPA might allow a state like West Virginia to take a light approach, another administration could demand much tougher emission reductions under the same authority. “But maybe down the road, maybe a different EPA, West Virginia submits a perfectly legitimate plan that’s not too lenient about regulation and EPA denies that state plan because they want something that’s way, way, way stricter,” Walker said. The state could sue — but “that court is going to have no standard to apply and it’s going to be bad news for West Virginia.” READ MORE