EPA Adopts Risky Legal Stance In ACE To Limit Air Act GHG Authority

摘要

EPA's just-issued Affordable Clean Energy (ACE) rule, which seeks to replace the Obama-era Clean Power Plan (CPP), adopts a risky legal interpretation arguing that the agency is prohibited from issuing the types of broad greenhouse gas standards that were included in the CPP in a bid to block a future administration from re-imposing similarly expansive requirements. In the June 19 final ACE rule, EPA takes a narrow read of its authority under section 111 of the Clean Air Act (CAA), arguing that the only permissible interpretation of the law is that it allows the agency to define the best system of emissions reduction (BSER) as what can be directly added onto a facility - rather than allowing more flexible measures that the CPP included, such as generation shifting or emissions trading. That will make it much more difficult, legal experts say, for Department of Justice (DOJ) lawyers to defend the new rule, which was coupled with a formal repeal of the CPP, in court - compared with an alternative scenario in which EPA had instead argued that its narrow interpretation was the most reasonable, rather than the only option.