Groups File Legal Challenges to ACE Rule

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Legal challenges to the Trump administration's Affordable Clean Energy (ACE) rule began in earnest April 17, as more than two dozen states and cities, along with several environmental activist groups, filed briefs with the U.S. Court of Appeals in Washington, D.C., seeking a rollback of power plant regulations that also have been decried by coal companies.

The groups filed an initial lawsuit against the rule in August 2019. The groups, including the Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, Clean Air Task Force and others called the EPA's action the "cynically misnamed Affordable Clean Energy Rule."

The ACE rule, enacted by the Environmental Protection Agency (EPA) in June 2019, is the Trump administration's replacement for the Obama-era Clean Power Plan, which itself was entangled in legal challenges and never enacted.

The ACE rule, first announced in August 2018, would give states more authority and allow them more time to decide how to best implement new technology to reduce pollutant emissions from coal-fired power plants. The rule sets no specific standards to cap those emissions, instead calling on states to decide the best emissions control technologies for coal plants within their boundaries.

Environmental groups argue the rule is too limited in the pollution controls it asks power producers to install. They say if the rule is upheld in court, it could make it difficult for future administrations to enact standards for more pollution control.

"The Rule is a blatant abdication of EPA's statutory duty to protect the public from air pollution that the agency itself has repeatedly found poses grave and imminent dangers to health and welfare," environmental groups wrote in their brief.

State attorneys general in their brief say the ACE rule "undercuts" legally binding federal objectives to reduce air pollution, and also ignores effective approaches to reducing emissions.

"EPA's new, cramped view of its authority is not compelled by the text, purpose, or structure of section 111," said the brief by the attorneys general, referring to a section of the Clean Air Act. "Because EPA's repeal of the Clean Power Plan is based solely on its new position that the statute unambiguously prohibits these emissions-reduction measures-EPA makes no effort to defend its interpretation as reasonable-the repeal is unlawful," the brief says.

Friday's filings came one day after the EPA withdrew the legal justification for an Obama-era rule that required coal-fired power plants to reduce their emissions of mercury. The Mercury and Air Toxic Standards (MATS) remains in place, but Thursday's action by the Trump administration could prevent similar regulations from being implemented in the future, the same argument made by some of the parties involved in Friday's ACE rule filings.

Power Plants, Coal Companies Argue Against Rule

Power plant operators and utilities, many of whom already have installed expensive pollution-control equipment, also have sued the Trump administration and filed briefs Friday siding with the environmental groups against the ACE rule. Coal companies have filed briefs arguing the EPA should not have issued the ACE rule at all; they say the agency does not have that authority.

A brief from Westmoreland Mining Holdings and the North American Coal Corporation argues that the EPA cannot issue the regulation, as the law requires a formal finding that coal "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." They wrote in their filing that without a specific finding for coal, the ACE rule should not have been written.

"EPA cannot possibly assess whether sources significantly contribute to 'air pollution that endangers public health or welfare without identifying the 'air pollution' at issue, and certainly EPA cannot establish a meaningful 'standard of performance' without identifying the endangering pollutant," they wrote.

-Darrell Proctor is associate editor for POWER (@DarrellProctor1, @POWERmagazine).

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