EPA Finalizes ACE Rule

Winston & Strawn LLP
Stephanie B. Sebor

July 11, 2019

On July 8, 2019, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register finalizing three discrete rulemaking actions. First, EPA repealed the Clean Power Plan (CPP) promulgated by the Obama Administration on the grounds that the CPP exceeded EPA’s rulemaking authority. Second, EPA finalized the American Clean Energy (ACE) rule, which established emission guidelines for greenhouse gas emissions from existing coal-fired electric utility generating units (EGUs). Third, EPA finalized regulations for state plans implementing emission guidelines under Clean Air Act (CAA) section 111(d). Notably, the agency did not finalize proposed changes to the CAA’s new source review regulations. It intends instead to finalize those revisions later as part of a separate rulemaking.

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EPA contractors

The EPA Proposes Affordable Clean Energy (ACE) Rule

Synergy Environmental, Inc.
Brink Young

August 22, 2018

On August 21st, the US Environmental Protection Agency (EPA) proposed a new rule to replace the Obama Administration’s signature climate change regulation. This new plan is designed to scrap the Clean Power Plan and replace it with the Affordable Clean Energy (ACE) Rule. This new rule will establish guidelines for states to use when developing plans to limit GHG’s at their power plants. The ACE Rule is intended to empower states, boost energy independence and aid economic growth and at the same time promoting job creation.

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2018 Outlook on the Clean Power Plan

Eversheds Sutherland (US) LLP
Susan G. Lafferty, Joshua L. Belcher and Samina M. Bharmal

January 12, 2018

Heading into 2018, undoing the Clean Power Plan, the Obama Administration’s signature regulation for addressing climate change, remains a high priority under the Trump Administration. While 2017 was rife with statements, some more formal than others, that the Clean Power Plan was facing its end, 2018 may produce actual results for industry. A repeal proposal is expected to be finalized this year. The Administration has also signaled that a potential replacement rule is in the works, which could pose significantly less, or at least different, burdens on regulated industry.

 What is the Clean Power Plan?

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Trump Track: EPA Moves on its Plan to Repeal [and Eventually Replace?] the Clean Power Plan

Davis Wright Tremaine, LLP
Kerry Shea

Reprinted with permission. © 2017 Davis Wright Tremaine, LLP
Article was originally posted to DWT’s Energy & Environmental Law Blog

October 11, 2017

On October 10, 2017, EPA announced it is taking steps to repeal the Clean Power Plan (CPP), regulations put in place in 2015 which requires existing power plants to roll back their CO2 emissions by 2030. EPA is taking the unusual position that the agency exceeded its powers under the Clean Air Act when it created the CPP. The new EPA intends to look into its own powers and reconsider whether, when and how to issue a rule regulating greenhouse gases from existing facilities.

The process launched today begins a procedure which can, and likely will, take years to complete. The end result is unclear and likely will be determined by a court.

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Pulling the Plug on The Clean Power Plan

Bryan Cave LLP
Thomas S. Lee

April 10, 2017

On March 28th President Trump signed the Executive Order on Promoting Energy Independence and Economic Growth (the “Executive Order”) signaling a sea change in the way that the executive branch will regulate industries and emissions that contribute to climate change. The practical outcome of the Executive Order will be determined over the next few years, but what is immediately clear is the administration’s policy statement that the Federal Government’s new priority is “avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” (Section 1(a)).

The Executive Order covers several topics, but the following are the key takeaways for stakeholders in the energy industry:

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Clean Power Plan’s Future in Jeopardy Under Trump

Holland & Knight, LLP
William P. Burchette and Beth A. Viola

January 12, 2017


President-Elect Donald Trump has vowed to scrap President Obama’s Clean Power Plan (CPP) rule, the cornerstone of Obama’s environmental legacy. The rule establishes the first national standards to limit carbon pollution from power plants.

Congress has a variety of tools available to invalidate the CPP and agency regulations. Congress can invalidate rules by the Congressional Review Act, appropriation riders or stand-alone legislation.

It is anticipated that the Trump Administration will make the invalidation of this rule a top priority in its first 100 days.

During his campaign, President-Elect Donald Trump vowed to scrap President Obama’s Clean Power Plan (CPP) rule. The CPP is the cornerstone of President Obama’s environmental legacy. The rule establishes the first national standards to limit carbon pollution from power plants. The CPP aims to limit carbon emissions from new and existing power plants, which represent the largest slice of U.S. greenhouse-gas emissions. The final CPP regulation sets a goal of cutting carbon pollution from power plants by 32 percent by 2030, compared with 2005 levels. The rule has long been under attack by the coal industry as it discourages the use of coal-fired power plants and incentives the use of natural gas and renewables. The rule is currently stayed pending judicial review. This alert provides a high-level analysis of the options available for Trump to overturn the regulation.

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US Supreme Court Grants Stay of Clean Power Plan

Kramer Levin Naftalis & Frankel LLP
Charles S. Warren & Theodore E. Lamm

February 10, 2016

On February 9, 2016 a divided United States Supreme Court issued an emergency stay of the Obama Administration’s Clean Power Plan, blocking enforcement of the power plant rules by the Environmental Protection Agency (EPA) until the resolution of pending litigation regarding their legality, which is anticipated later this year.

After EPA announced the final Clean Power Plan in August 2015, a group of states, coal and utility companies and industry groups filed the litigation challenging the rules, which call for a 32 percent reduction in power plant emissions of greenhouse gases (GHGs) nationwide by 2030. The challengers’ central argument is that the required reductions will force states to transition from coal-fired power generation to renewable sources such as wind and solar energy, which is regulation “outside the fenceline” of power plants that the Clean Air Act does not permit. They requested a stay of EPA’s implementation of the rules on the basis that beginning to plan the transition to cut GHG emissions, before the courts had ruled on this argument, would irreparably harm their economic interests.

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EPA Finalizes Ambitious Clean Power Plan

Paul Hastings LLP
Kevin Poloncarz & Ben Carrier

August 7, 2015

On August 3, 2015, the Environmental Protection Agency (hereinafter, “EPA”) released its final “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (the “Clean Power Plan” or “Final Rule”), a much-anticipated regulation to reduce carbon dioxide (“CO2”) emissions from existing power plants. Compared to the June 18, 2014 proposed Clean Power Plan (“Proposed Rule”, see 79 Fed. Reg. 34830 (June 18, 2014)), the Final Rule establishes more ambitious CO2 emission reduction goals while providing additional flexibility to affected electric generating units (“EGUs”) and states in meeting the Clean Power Plan’s goals. Along with the Final Rule, the EPA concurrently proposed a federal plan to implement the requirements of the Clean Power Plan in states that do not submit an approvable plan. The proposed Federal Plan also provides proposed model rules that states can adopt to facilitate interstate trading to achieve either their respective rate- or mass-based goals.

The Clean Power Plan is one of the boldest and most ambitious environmental regulations of our time and, for those reasons alone, is likely to be one of the most contested as well. Several states and coal producers already challenged the Proposed Rule in court, even before it was final, and are poised to challenge the Final Rule again, once it appears in the Federal Register. Sixteen states have already sought an administrative stay of the Final Rule pending resolution of litigation.

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US EPA Extends Public Comment Period on the Clean Power Plan until December 1, 2014

Squire Patton Bogg
Anne Harrington

September 18, 2014

In response to widespread requests from states, lawmakers, and industry stakeholders, US EPA announced on September 16, 2014 that it is extending the initial 120-day public comment period for its proposed Clean Power Plan by 45 days until December 1, 2014. As previously reported, the Clean Power Plan proposes guidelines for states to use in developing plans to significantly reduce carbon emissions from existing fossil fuel-fired power plants by 2030.  If implemented, the Plan will substantially impact the US energy sector as well as all 50 state governments. The extension came after a bipartisan group of 53 US senators asked US EPA to extend the comment period by 60 days due to the “complexity and magnitude” of the 45-page proposed rule, which was accompanied by 600 pages of additional documentation.

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