DC Circuit Unpacks Trump’s Pollution Plan Supplanting Obama Rules

WASHINGTON (CN) — In a marathon day of oral arguments on the Trump administration’s rollback of an Obama-era rule on power plant emissions, more than a dozen health and environmental groups argued new regulations brazenly fail to combat climate change. 

The American Lung Association and the American Public Health Association first sued to challenge Trump’s Affordable Clean Energy, or ACE, rule in 2019. Dozens of parties jumped on the case and over 170 others filed amicus briefs in the legal showdown that came to a head in the Washington appeals court Thursday. 

“It’s like choosing a squirt gun to put out a five alarm fire. EPA provides no reasoned explanation of how such a paltry remedy is appropriate given a record showing such an urgent problem,” Sean Donahue argued for the health and environmental petitioners. 

In a more than nine-hour hearing, challengers blasted the new ACE rule for failing to protect public health under the Clean Air Act. 

They argued the EPA abdicated its duty to regulate carbon dioxide pollution from coal-fired power plants with the lenient regulations unveiled last year.

The EPA argued the difference in net cumulative emissions between the new rule and the Obama-era Clean Power Plan is “slight,” telling the three-judge panel the energy industry has been effectively self-regulating and already exceeded the prior regulatory scheme’s 2030 goals. 

But the lineup of parties urging the appeals court to hold the Trump administration to its regulatory duty to reduce carbon dioxide emissions warned the pollutant is a major contributor to climate change. 

The Trump administration’s replacement rule drops all statewide emissions caps, giving state regulators greater autonomy and more time to reduce pollution. 

“Without a minimum required level of reduction, EPA does open the door for states to set very lenient standards, contradicting the statutory design that all states must do their share to limit pollution that’s endangering public health and welfare,” attorney Michael J. Myers argued for 30 city and state petitioners, among them California, Florida and New York. 

Myers warned that ACE also prohibits states from trading emissions credits to meet reduction requirements, a practice with “long-standing roots in the Clean Air Act.”  

“Despite this proven track record, ACE precludes trading because sources would comply to increasingly use a lower or zero carbon generation, not upgrading coal plants,” he said.

The so-called generation shifting allows for plants to take advantage of more efficient energy generation by other sources on the power grid through trading. 

“The reason that sources have preferred generation shifting in similar schemes in the past is because it’s often cheaper to take advantage of another source’s more efficient generation than to be compelled to install technology at your own plant,” attorney Steven Wu argued for the city and state petitions. 

In fact, the energy industry had asked the EPA before the Clean Power Plan was rolled out to incorporate trading into a regulatory scheme, as the agency eventually did under President Barack Obama. 

Weighing in, energy companies hailing from coast to coast said generation shifting is an “inescapable physical and operational reality” on the power grid.

“They [EPA] never grappled with the facts in the record as to what would be the best system,” attorney Kevin Poloncarz argued for the power companies. 

Repealing the Obama rule, based on a statutory interpretation that it “handcuffed the agency,” the EPA considered a limited set of emissions reduction measures. 

If the D.C. Circuit finds the EPA wrongly interpreted the Clean Air Act, the challengers argued that would be enough to warrant remanding Trump’s rule to the agency to be rewritten. Reinstating the Obama rule is no longer feasible because emission reductions deadlines have passed. 

Arguing Obama’s plan was too aggressive, the EPA told the court the new rule allows states greater flexibility to implement regulatory plans, focused on plants installing new technology to decrease emissions. 

Faced with sharp questioning from the judges, the Justice Department boldly defended the new rule. 

“It may be the case that the best system of emissions reduction is one that, once you consider all of the statutory factors, that there actually is not a best system of emissions reduction, that for a particular category of sources may actually move the needle,” DOJ attorney Jonathan Brightbill said, referring to coal energy sources. 

The new Trump rule, the American Lung Association has argued, “will result in some fossil fuel plants running more often and delaying their retirement, which would mean increased emissions of dangerous pollution as compared to the Clean Power Plan.” 

Along the line of that concern, U.S. Circuit Judge Patricia Millett probed at the lifespan of a coal-fired plant. 

While Brightbill could not answer the Obama appointee’s question, another attorney later informed the panel the fossil fuel plants typically operate around 40 years. 

Millett posed a hypothetical where a coal-fired plant — “hanging on by a shoestring” facing rising competition from cleaner energy sources — can’t meet set emission reductions. 

“There’s no real standard here to violate,” the judge said. 

The Justice Department responded that the coal plant’s “remaining useful life” would be a factor. 

“But clearly that is a very broad discretionary branch of authority to states, your honor. I would agree with that and that was Congress’ policy choice,” Brightbill said. 

As the panel drilled the government for nearly an hour on the hypothetical, U.S. Circuit Judge Justin Walker said the plan leaves it up to the EPA to approve or disapprove states’ emission reduction plans, rather than setting nation-wide guidelines. 

“The EPA is going to have enormous discretion to do that — which is a lot of power to invest in the EPA to just say thumbs up or thumbs down,” the judge said. 

Trump’s newest appointee to the D.C. Circuit, Walker added: “Maybe this approach is defensible, but I haven’t heard the defense.” 

Revealing equal concern with the ACE rule, Millett repeatedly said EPA seemed to be “gilding the lily.” 

U.S. Circuit Judge Cornelia T.L. Pillard, an Obama appointee, rounded out Thursday’s panel. Millett closed out saying that after nine hours of oral arguments an opinion in American Lung Association et al v. EPA et al would be at least one month in coming.

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