The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule please email us.
August 21, 2018 — EPA announced the proposed replacement rule, the Affordable Clean Energy (ACE) Rule. The ACE rule has several components: a determination of the best system of emission reduction for greenhouse gas emissions from coal-fired power plants limited to modifications that can be made “within the fenceline” of each plant, a list of “candidate technologies” states can use when developing their plans, a proposed change to the New Source Review program: a new applicability test based on hourly emissions for determining whether a physical or operational change made to a power plant may be a “major modification” triggering NSR, and new implementing regulations for emission guidelines under Clean Air Act section 111(d). The proposed rule was published in the Federal Register and the comment period is open until October 31, 2018.
See our CPP backgrounder and legal analysis of the proposed replacement rule.
Why it Matters
The Clean Power Plan is the crown jewel of America’s international climate commitments, promising to lower emissions from the power sector 32% from 2005 levels by 2030. The rule allows states flexibility to figure out how best to achieve the necessary reductions. A rollback undermines U.S. emissions reduction targets and creates uncertainty for power producers.READ MORE
October 23, 2015 — EPA published the Clean Power Plan (or the “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units”). The rule set carbon pollution limits on existing power generators. Some states and industry immediately challenged the rule in the D.C. Circuit Court.
January 21, 2016 — The D.C. Circuit Court rejected calls for a stay (suspension) of the rule.
February 9, 2016 — The Supreme Court issued a stay of the Clean Power Plan, to last until the Supreme Court decides the case on appeal or declines to hear it. Scholars noted this might be the first time the Supreme Court ever stayed a rule before any court ruled on the merits.
September 27, 2016 — The D.C. Circuit heard oral arguments on the CPP.
March 28, 2017 — President Trump signed the Executive Order on Promoting Energy Independence and Economic Growth, directing EPA to review and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the Clean Power Plan. EPA asked the Court to halt deliberations while they reviewed the rule.
April 4, 2017 — EPA published a brief notice of its intention to review the CPP promising to assess whether the rule respects state authority and supports economic growth.
April 28, 2017 — At the request of the Trump Administration, the D.C. Circuit suspended the litigation for 60 days and ordered EPA to file 30-day status reports about the agency’s review of the rule. The Court also asked the parties to file briefs to address whether the rule should be returned to EPA in lieu of continued suspension of the litigation.
May 15, 2017 — EPA filed a brief arguing the cases should remain suspended to preserve the Supreme Court’s stay. Environmental groups sought a remand to EPA, to lift the stay and require the agency to go through a formal rulemaking process to roll back the Clean Power Plan. The groups and states supporting the CPP also asked the Court to rule on the case, arguing the same issues will reappear in any new rule issued under this section of the Clean Air Act.
May 30, 2017 — EPA filed its first status report with the D.C. Circuit Court indicating the Clean Power Plan is under review.
June 12, 2017 — EPA filed a supplemental status report alerting the Court that it had submitted a proposed regulatory action on the Clean Power Plan to the White House for review.
June 16, 2017 — Environmental groups filed a response to EPA’s supplemental status report noting EPA still has no timetable for finalizing a Clean Power Plan replacement.
June 29, 2017 — EPA filed a second status report that indicated no progress had been made.
August 8, 2017 — Court determined the case should remain suspended for another 60 days. Judges Millett and Tatel concurred in the order but added that “[a]s this court has held the case in abeyance, the Supreme Court’s stay now operates to postpone the application of the Clean Power Plan indefinitely while the agency reconsiders and perhaps repeals the Rule… Combined with this court’s abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future.”
September 7, 2017 — EPA filed a status report which said they plan to file a proposed rule in “the Fall of 2017” and asked that the case remains on hold.
October 10, 2017 — EPA released a proposal to repeal the Clean Power Plan, saying the rule “exceeds the Agency’s statutory authority.” EPA did not release a replacement rule, but stated that it will issue an Advanced Notice of Proposed Rulemaking to solicit comments on carbon control measures that could be implemented at individual power plants. EPA is taking comments on the proposed repeal until April 26, 2018. The agency held public hearings on the rollback in West Virginia on November 28-29, 2017.
October 17, 2017 — A group of states and environmental and public health groups asked the D.C. Circuit court to rule on the case now, or to limit any further delays to 120 days.
November 10, 2017 — The Court determined the case should remain suspended for another 60 days.
December 6, 2017 — EPA announced three additional public meetings on the proposed rollback in Missouri, Wyoming, and California.
December 18, 2017 — The agency issued an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants.
December 28, 2017 — The agency published an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants. EPA took comments on the Advance Notice of Proposed Rulemaking until February 26, 2018.
January 9, 2018 — A coalition of states and municipalities, led by California and including Delaware, Hawaii, Illinois, Maine, Maryland, New Mexico, New York, Oregon, Vermont, and Washington, the Commonwealth of Massachusetts, the District of Columbia, the County of Broward (Florida), and the Cities of Boulder (Colorado), Chicago (Illinois), New York (New York), Philadelphia (Pennsylvania), and South Miami (Florida) filed a formal request calling for the recusal of Administrator Scott Pruitt from the effort to repeal the Clean Power Plan, arguing that his leading role in the lawsuits that halted the Clean Power Plan made him biased in the new rulemaking process.
January 30, 2018 — After swearing in a new governor and state attorney general, New Jersey filed a motion to be removed from the lawsuit opposing the Obama-era Clean Power Plan.
February 2, 2018 — EPA published a Federal Register notice stating it is re-opening the public comment period for the proposed repeal through April 26, 2018 (it originally closed in January).
June 27, 2018 — the D.C. Circuit granted another stay in the Clean Power Plan litigation before the court, but two judges expressed concern about the continued delay and stated that they would not vote to grant another stay in the future.
July 9, 2018 — EPA submitted its proposed rule to replace the Clean Power Plan to the White House Office of Management and Budget for review. After the review, the proposed rule will be published in the Federal Register and open for comment.
August 21, 2018 — EPA announced the proposed replacement rule, the Affordable Clean Energy (ACE) Rule. The ACE rule has several components: a determination of the best system of emission reduction for greenhouse gas emissions from coal-fired power plants limited to modifications that can be made “within the fenceline” of each plant, a list of “candidate technologies” states can use when developing their plans, a proposed change to the New Source Review program: a new applicability test based on hourly emissions for determining whether a physical or operational change made to a power plant may be a “major modification” triggering NSR, and new implementing regulations for emission guidelines under Clean Air Act section 111(d). The proposed rule was published in the Federal Register and the public comment period is open for 30 days until October 1, 2018.
August 24, 2018 — EPA submitted a status update to the D.C. Circuit in its Clean Power Plan case, pointing to the proposed ACE Rule as support for continuing the stay. The agency also EPA reiterated its prediction that the final rule would be completed in the beginning of 2019.
For More Information
For more on the history of the Clean Power Plan see our Clean Power Plan Resources. Also see Save EPA’s Defending the Clean Power Plan and Advance Notice of Proposed Rulemaking page, as well as their comments on the rollbacks.