On Tuesday, the D.C. Circuit vacated and remanded the Trump administration’s 2019 Affordable Clean Energy (ACE) rule. The ACE rule was intended as a replacement for the Obama-era Clean Power Plan (CPP). ACE was viewed as a significant rollback, especially since the CPP was one of the first major initiatives to reduce greenhouse gas emissions. The Court’s decision will send the U.S. Environmental Protection Agency (EPA) back to the drawing board, opening the door for the Biden administration to pursue its own rule-making agenda.

Section 7411 of the CAA

The ACE rule repealed the CPP and severely limited the ways in which greenhouse gas emissions could be regulated based on a new interpretation of Section 7411 of the Clean Air Act (CAA). Under the ACE rule, EPA interpreted Section 7411 of the CAA as requiring the agency to consider only control methods that could be applied at and to a stationary source, such as heat rate improvement technologies, when determining the best system of emission reduction. This interpretation was directly at odds with the CPP, which utilized control methods that were not applied at or to a physical source such as generation shifting.
Continue Reading DC Circuit Court vacates and remands the Trump administration’s Affordable Clean Energy rule

On January 25, 2018, the U.S. Environmental Protection Agency (“EPA”) withdrew its 1995 “once in always in” guidance. Under that guidance, facilities classified as “major sources” of hazardous air pollutants (“HAP”) as of the “first compliance date” of a maximum achievable control technology (“MACT”) standard under Section 112 of the Clean Air Act are required to comply permanently with the MACT standard. Now, EPA’s current policy is that a major source that limits its potential to emit (“PTE”) to below major source thresholds can become an area source and will no longer be subject to the major source MACT.

The Clean Air Act defines “major source” as “any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” This definition expressly allows PTE to be calculated “considering controls,” and does not address the timing for when a source will be classified as a major source. As a result, EPA found that its “once in always in” policy “created an artificial time limit” contrary to the plain language of the Clean Air Act and must be withdrawn.
Continue Reading Withdrawal of EPA’s “Once in Always In” Policy for Major Sources of Hazardous Air Pollutants Reduces Burdens and Encourages Emission Reduction

As anticipated, on October 10 the EPA signed a proposed rule to repeal the Clean Power Plan rules for existing stationary sources. The proposed rule concludes that the Clean Power Plan exceeds EPA’s authority under Section 111(d) of the Clean Air Act by regulating emissions by (among other approaches) substituting generation from lower-emitting existing natural gas combined cycle units and zero-emitting renewable energy generating capacity.

Rather, EPA has now determined that
Continue Reading Update on the Proposed Repeal of the Clean Power Plan

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Fulfilling repeated campaign pledges to roll back the Obama administration’s climate change initiatives, President Trump signed a sweeping executive order yesterday targeting key Obama-era regulations, including the Clean Power Plan and emission standards for the oil and gas industry. The executive order states that it is in the interest of the nation to promote development of energy resources “while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” The multi-faceted approach taken by the order makes it clear that this Administration views any regulation of climate change or carbon pollution as “unnecessary.” 
Continue Reading Trump’s Executive Order Takes a Multi-Faceted Approach to Eliminating Climate Change Regulation

logo-cop21Last Tuesday, the European Union ratified the Paris Agreement, the landmark international agreement dealing with the mitigation, financing and adaptation of greenhouse gas emissions. With the EU ratification, enough nations have ratified the Agreement, representing a sufficient percentage of the worldwide production of greenhouse gases, for the Agreement to take effect on November 4, 2016. Presently, more than 190 nations have signed the Agreement, of which around 76 have ratified it. In September, the U.S. and China mutually announced that the world’s two largest economies – and the two largest emitters of greenhouse gases – were ratifying the Agreement.
Continue Reading Paris Agreement Climate Change Accord to Take Effect

Chemical factory at nightUnder EPA’s revised Regional Consistency regulations (codified in 40 C.F.R. Part 56) , sources located in different parts of the country may be subject to a different “single source” aggregation test or other Clean Air Act policies based on decisions of the federal courts with local jurisdiction.
Continue Reading EPA Addresses Aggregation Concerns with Clean Air Act Exemption