- The Washington Times - Tuesday, January 19, 2021

A federal appeals court torched Tuesday the administration’s bid to repeal and replace the Obama-era Clean Power Plan, delivering a blow to President Trump’s deregulatory and pro-business agenda on his last full day of office.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the Affordable Clean Energy rule, a more industry-friendly alternative to the ambitious but never-implemented Clean Power Plan, the Obama administration’s signature policy on slashing power-plant emissions.

The judges — two Obama appointees and a Trump appointee — held that the Environmental Protection Agency “misconstrued” the relevant section of the Clean Air Act, ruling in favor of the 23 progressive attorneys general and eight city governments that filed the lawsuit in 2019.

“Because promulgation of the ACE Rule and its embedded repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act, we vacate the ACE Rule and remand to the Agency,” said the 185-page decision.

EPA spokeswoman Molly Block said the agency would review the decision and “explore all available litigation options,” while New York Attorney General Letitia James applauded the ruling against the so-called dirty power rule.



“This ruling affirms what we’ve said all along — the ‘Affordable Clean Energy’ rule did nothing to promote clean energy, and was not affordable for American consumers,” Ms. James said in a statement. “Instead, this ‘Dirty Power’ rule served to support dirty and expensive coal power plants, undercut clean and sustainable electricity, and left New Yorkers and all other Americans to foot the bill.”

The decision came as a pre-inauguration gift for President-elect Joseph R. Biden by striking down the ACE rule, which his administration likely would have sought to jettison as part of his ambitious climate-change agenda.

“The Dirty Power Plan was clearly a disastrous and misconceived regulation from the start, and the court’s decision confirms that assessment,” said Andrea Gimsey, global warming solutions senior director of Environment America, a federation of environmental advocacy groups. “As the Trump administration leaves office, we hope this ruling will be reflective of a much brighter future.”

Ms. Block said that the EPA was “disappointed that the panel majority rejected EPA’s well-supported repeal of the Clean Power Plan,” which has been tied up in court since shortly after it was unveiled in 2015.

While the ACE rule was seen on the right as far preferable to the Clean Power Plan, there were few tears shed by free-market advocates over the decision to toss the Trump alternative.

“Oddly enough, this is a win. Here’s why,” said JunkScience founder Steve Milloy, a former member of the Trump EPA transition team. “The Obama Clean Power Plan (CPP) was stayed by the Supreme Court. The greens do not want it reinstated. The Trump ACE rule was actually undercut by its assumption that coal plant emissions are harmful to the climate. So the Biden EPA will try to issue a new rule. Regulatory-wise, we are basically back in the pre-CPP days of June 2013.”

The CPP was the cornerstone of the Obama administration’s so-called war on coal, but fossil-fuel fans face a far larger challenge with Mr. Biden, who has pledged to achieve net-zero emissions by 2050, presumably requiring the phasing-out of both coal and gas-fired power plants.

“In any event, these rules have no impact on the coal industry since many, if not almost all utilities, have committed to phasing out coal. The fight goes on,” Mr. Milloy said.

Greg Wrightstone, executive director of the CO2 Coalition, said the CPP and the ACE rule were “faulty at their very root.”

“Both were created using flawed assumptions that carbon dioxide from coal-fired power plants has overwhelming negative effects on the environment and humanity, when just the opposite is the case,” Mr. Wrightstone said. “Modest warming combined with increasing CO2 is leading to improving and thriving ecosystems and many benefits for mankind.”

Presiding over the case were Judge Patricia Millett and Judge Cornelia Pillard, both Obama appointees, and Trump-appointed Judge Justin Walker, who concurred in part and dissented in part.

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