On February 22, 2021, the D.C. Circuit granted the Environmental Protection Agency’s (“EPA”) motion to stay the vacatur of the Trump administration’s Clean Power Plan Repeal Rule until EPA conducts further rulemaking on the issue in the case of American Lung Association v. EPA, No. 19-1140 (D.C. Cir., Feb. 22, 2021). This decision marks the latest action in the ongoing efforts by EPA and states to regulate greenhouse gas emissions; particularly in terms of carbon emissions from currently existing power plants. For additional background, please see previous MGKF blog on this topic here.  Read More »

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On January 19, 2021, the U.S. Court of Appeals for the D.C. Circuit vacated and remanded the Trump administration’s Affordable Clean Energy Rule (“ACE Rule”), which itself was a rollback of the Obama administration’s Clean Power Plan (“CPP”); once again reshaping the heart of American climate policy. American Lung Association v. EPA, No. 19-1140 (D.C. Cir., Jan. 19, 2021). The CPP and ACE Rule both sought to regulate greenhouse gas (“GHG”) emissions from existing stationary sources but used highly divergent interpretations of the Clean Air Act (“CAA”) to do so. In making its ruling, the Court called the Trump Environmental Protection Agency’s interpretation of the CAA a “fundamental misconstruction” of the statute and provided a lengthy analysis of its findings. Id. at 16. The Court ultimately held that because the Environmental Protection Agency (“EPA”) based the ACE Rule “on an erroneous view of the law” (as opposed to having based the ACE Rule on a valid exercise of agency discretion), the court had no choice but to vacate the rule and remand it to the EPA for additional interpretation. Id. at 46. Because President Biden has described climate change as the “existential threat of our time,” the Biden EPA will likely use this opportunity to draft new rulemaking regarding the regulation of GHG emissions. Read More »

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