The EPA announced its final rule for power plant greenhouse gas (GHG) emissions, culminating often rancorous discussion and litigation over the EPA’s authority to regulate GHG emissions from existing coal-fired electricity generating sources. Under the new Affordable Clean Energy (ACE) rule, the states, not the federal government, are now responsible for driving down GHG emissions from power plants. Specifically, the EPA now requires unit-specific standards of performance to be developed by the states using its new emission guideline that details the “best system of emission reduction.”
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The EPA kicked off the week with the proposed Affordable Clean Energy (ACE) rule, which is meant to replace the Clean Power Plan (CPP). As expected and foreshadowed by its proposed changes to the legal rationale underpinning the CPP, the EPA will regulate only source emissions, not sector-wide emission reduction activities. The EPA claims this “best system of emissions reduction” is consistent with the Clean Air Act Section 111(d) authority and is both technically feasible and appropriate for coal-fired power plants.

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The Clean Power Plan, the Obama Administration’s attempt to reduce carbon dioxide emissions from existing power plants, had its day in court on September 27. What a day it was!

Ten judges of the D.C. Circuit Court of Appeals heard arguments addressing the validity of the EPA’s Clean Power Plan in this rare “once in a lifetime” case. (Judge Merrick Garland, a nominee to the Supreme Court, did not hear the case.) A dozen lawyers battled for nearly eight hours — far longer than the three hours the court had allotted — on issues ranging from the Plan’s constitutionality, obscure principles of statutory interpretation, congressional intent, states’ rights, and administrative procedure.
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In 2013, President Obama issued the Climate Action Plan. Its goal: to reduce greenhouse gas emissions from a broad range of economic sectors. Moreover, the Climate Action Plan is the key set of initiatives necessary to achieve the United  States’ GHG reduction commitment set out in the 2015 Paris Agreement, an international accord.

We covered the initiation of a wide range of rulemakings in a blog post dated September 28, 2015, and, as the Obama Administration comes to a close, climate change rulemakings continue to move forward. The most contentious rule—the Clean Power Plan—has moved from rulemaking to litigation. Many other rules (e.g. new rules limiting methane emissions from the oil and gas industry and the renewable fuel standards) have moved from proposal to final rules. We summarize the status of 10 different rules, standards, or programs meant to implement the Climate Action Plan below.
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The Clean Power Plan continues its surprising path to becoming the law of the land. On May 16, the D.C. Circuit Court of Appeals on its motion issued an order to delay oral argument in the Clean Power Plan rulemaking and hear the case en banc. The oral arguments were scheduled for June 2 and 3, and are now set to begin on September 27. Presumably the argument will be allotted two days, but the court notes that it will issue further orders regarding the allotment of time for oral argument.
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On February 9, 2016, the U.S. Supreme Court issued a 5-4 decision staying implementation of the Clean Power Plan until the D.C. Circuit rules on challenges to the Plan. The Court left open the possibility that it would review the D.C. Circuit’s ultimate decision.

The decision delays President Obama’s Climate Action Plan. The Clean Power Plan is its key climate change rule. It requires states and utilities to reduce carbon dioxide (CO2) emissions by generating less electricity from coal, and more from lower carbon-emitting sources like natural gas, or zero-carbon sources like solar and wind. The Plan has an ambitious goal: to reduce CO2 emissions 32% below 2005 levels by 2030.
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The D.C. Circuit denied industry petitioners’ motions to stay the effectiveness of the Clean Power Plan on Jan. 21. In a two-page order, the court found the petitioners had not satisfied the requirements for a stay pending review and issued an expedited case schedule.

The order asked parties to submit a format for briefing as well as a schedule by Jan. 27, 2016 that ensures that all briefing will be complete by April 22, 2016. Parties will debate whether the cost of implementing the rule is too great and whether EPA has exceeded the bounds of its authority, among numerous other issues. Oral arguments are scheduled to begin June 2, 2016 and continue to June 3 if necessary. This schedule could allow for a court decision before initial state plans are due in September 2016.
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On October 23, 2015, EPA published the long-awaited Clean Power Plan in the Federal Register.  The published rules include the Existing Source Performance Standards and the New, Modified, and Reconstructed Source Performance Standards.  In those rules, EPA established carbon dioxide (CO2) emission performance rates representing the Best System of Emission Reduction (BSER) for existing, modified, and new fossil fuel-fired electric utility steam generating units and stationary combustion turbines, set state-specific CO2 goals reflecting the CO2 emission performance rates; and established guidelines for developing state implementation plans.  These rules will become effective December 22, 2015.
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Murray Energy Corp. Suit Allowed to Proceed

Upon publication of the proposed “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Generating Units” (also referred to as the Proposal or Clean Power Plan), on June 18, 2014, Murray Energy Corp. filed a petition for writ of extraordinary relief, alleging that the United States Environmental Protection Agency (USEPA) does not have the legal authority under the Clean Air Act to finalize performance standards for existing sources under Section 111(d).  Murray Energy Corporation v. U.S. Environmental Protection Agency, No. 14-1112 (D.C. Cir. filed June 18, 2014).  A week later, on June 25, 2014, a group of nine states filed an amici curiae brief, urging the D.C. Circuit to grant Murray Energy’s petition for writ, prohibiting USEPA to continue with its rulemaking.
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Q:        What is the Clean Power Plan?

A:        The United States Environmental Protection Agency (USEPA) is proposing to regulate greenhouse gas (GHG) emissions from fossil fuel-fired electric generating units (EGUs) through a rule called the Clean Power Plan.  This rule does not purport to directly regulate EGUs.  Instead, USEPA is proposing statewide carbon dioxide (CO2) emission goals and guidelines, called the “state goals.”  States would develop plans to meet those state goals, using a flexible menu of programs and tools that USEPA discusses in the proposal.  Most of the details are left to the states and will be included in State Implementation Plans (SIPs).
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