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Biden’s ‘Fresh Start’ on Emissions Not Seen as Legal ‘Slam Dunk’

Jan. 20, 2021, 8:52 PM

A federal court ruling on power plant emissions paved the path for President Joe Biden’s climate plans, but future litigation over greenhouse gas regulations could throw up hurdles, attorneys and legal scholars say.

Biden’s aggressive climate plans got a leg up Tuesday when the U.S. Court of Appeals for the District of Columbia Circuit struck down the Trump administration’s Affordable Clean Energy (ACE) rule, which softened greenhouse gas emission regulations for existing power plants. The ruling allows Biden to sidestep a lengthy rulemaking processes that would have been required to dismantle ACE and install a replacement rule.

The decision isn’t a total “slam dunk,” Harvard Law School’s Environmental and Energy Program staff attorney Hana Vizcarra told Bloomberg Law. Future legal battles over climate regulations are likely still on the horizon, she said, but the victory does give the new administration an advantage.

“It gives them sort of a fresh start in how they approach the regulation of greenhouse gases of existing power plants,” she said.

Even with the boost, the Biden administration must contend with a 6-3 conservative majority on the high court that may be reluctant to approve sweeping agency actions.

Nathan Richardson, an associate law professor at the University of South Carolina, sees two choices for Biden’s Environmental Protection Agency: craft regulations that won’t get challenged or that would eventually pass Supreme Court scrutiny. Otherwise, actions such as limiting federal oil and gas leasing might be a safer bet.

“Use the Clean Air Act, but don’t make it your centerpiece,” Richardson said of a recommended Biden approach.

‘Even More Skeptical’

The D.C. Circuit threw out the Trump’s EPA’s hyper-narrow interpretation of regulatory authority under the Clean Air Act for having “no basis—grammatical, contextual, or otherwise.”

It was the culmination of a lengthy legal brawl waged by health groups, environmentalists and blue states who argued in marathon hearings last year that the rule would do nearly nothing to stem emissions from the power sector.

Environmentalists and experts hailed the decision as a major triumph for future climate policy and a gift for the new White House’s plans to regulate a sector with an outsized contribution to the nation’s greenhouse gas emissions.

But Biden’s choice to go all-in on climate regulation or skirt around the Supreme Court poses “a real dilemma,” said Jeff Holmstead, a partner in Bracewell LLP and former assistant EPA administrator for air under George W. Bush.

“Two judges on the D.C. Circuit have now endorsed the approach that the Obama EPA adopted in the Clean Power Plan, but the pre-Trump Supreme Court expressed skepticism about it when it stopped the Clean Power Plan from coming into effect,” he said in an email.

“The current Supreme Court is likely to be even more skeptical,” he added.

‘Outside the Fence Line’

ACE was promulgated as a replacement to Obama’s Clean Power Plan, which would have regulated existing power plants with a broader, sector-wide approach. Trump’s EPA argued that their authority to regulate carbon from coal-fired power plants was much narrower based on the text of the Clean Air Act. The D.C. Circuit disagreed, calling the EPA’s interpretation a “tortured series of misreadings.”

In rejecting ACE’s narrow regulatory scope, the D.C. Circuit’s decision also lent weight to Clean Power Plan interpretations of the Clean Air Act, which means that Biden has more flexibility to regulate greenhouse gas pollution from power plants under Section 111, according to Loyola University law professor Robert R. M. Verchick.

“There’s every reason to think that you can set a performance standard that reflects something achievable outside the fence line,” he said.

Biden’s EPA could use a combination of legislation and regulatory standards that could be pared down if justices found them too extreme, Verchick added.

“What you want is a system that if one tool fails, another tool kicks in and picks up the slack,” Verchick said. “That’s incredibly important in a problem like this, where addressing the issue is extremely urgent and you can’t have a do-over.”

The case is: Am. Lung Ass’n v. EPA, D.C. Cir., No. 19-1140, 1/19/21

To contact the reporter on this story: Jennifer Hijazi in Arlington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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