EPA has finally released its proposed replacement for the Clean Power Plan, 
dubbed the Affordable Clean Energy Rule. More affordable than clean, I’d say.
What’s really telling is that EPA’s own analysis shows that the CPP would have delivered significantly more benefits than ACE. And that goes for both direct benefits in GHG emissions reductions and indirect benefits related to reductions in traditional criteria pollutants.… More
Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. 
Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More
What will a Trump Presidency mean for environmental law? 
I’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:
Yesterday, the Supreme Court stayed EPA’s Clean Power Plan 
rule. No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this point.
Everyone, supporters and opponents alike (and yours truly), thought that there was no possibility that the Court would grant a stay.… More
Last month, I went out on a limb and predicted that the D.C. Circuit Court of Appeals would not stay the CPP. Today, the Court vindicated my faith in judicial rationality and refused to grant a stay. In a brief order, the Court simply stated that “Petitioners have not satisfied the stringent requirements for a stay pending court review.”
The Court did expedite briefing,… More
I finally caught up with the brief filed by the government last week, opposing the motion to stay the EPA Clean Power Plan rule, pending full judicial review. I just don’t see the stay being granted (of course, I did not see it coming with the WOTUS rule, either, so I’m not quite infallible). The motion should fail on both the irreparable injury and public interest prongs of the test for issuance of a stay.… More
I have never understood why 43 states – including the great Commonwealth of Massachusetts – have independent elected attorneys general. I’m sure my new colleague, former Massachusetts Attorney General Martha Coakley, would disagree with me, but I just don’t think that the value of having an AG independent of the Governor is worth the lack of policy consistency. Exhibit A to my argument is the current dispute in Colorado between Governor John Hickenlooper and Attorney General Cynthia Coffman concerning EPA’s Clean Power Plan. … More
So the Clean Power Plan has been published in the Federal Register. For those who cannot get enough, you can find all of the important materials, including EPA’s Technical Support Documents, on EPA’s web site for the CPP.
Not surprisingly, given the number of suits brought before the CPP was even finalized, opponents were literally lining up at the courthouse steps to be the first to sue. … More
So the Clean Power Plan is out. It’s difficult to be pithy about such a big, sprawling, mess, 
other than to say that it’s probably about as good as it could be, though that may not be enough. Here are a few items that have caught my eye so far:
Easy way to tell when you’ve lost your appeal? When a pithy judge starts making fun of you in the first sentence of the opinion. In a case that was only ever going to have one outcome, the D.C. Circuit Court of Appeals today rejected all of the pre-promulgation challenges to EPA’s Clean Power Plan. Judge Kavanaugh began by noting that:
Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants.… More
In November, the North American Electric Reliability Corporation provided its “Initial Reliability Review” of EPA’s Clean Power Plan. NERC raised a number of concerns about the impact of the CPP on reliability.
Now the Advanced Energy Economy Institute – you can guess its perspective – has engaged the Brattle Group to provide an assessment of NERC’s IRR. Not surprisingly, … More
As most readers know, EPA has extended its schedule for issuing its rules addressing GHG emissions from both existing, and new and modified, power plants. EPA expects to issue the rules in the Summer of 2015. Only time will tell whether the agency makes the new date.
For those looking for a handy summary of actions to date and EPA’s schedule going forward, EPA has provided a short Fact Sheet which sets out the relevant dates for the various rules.… More
On Tuesday, EPA issued a Notice of Data Availability, requesting further comment on some specific issues that have been raised since it published its draft Clean Power Plan in June. My immediate reaction? My head hurts.
I don’t mean to trivialize the implementation issues that would likely arise if Congress enacted either a cap-and-trade system or a carbon tax, but they’ve got to pale in comparison to the Rube Goldberg-like system that’s going to be in place once EPA promulgates a final rule. … More
The Union of Concerned Scientists today announced release of a report which attempts to document that the renewable energy 
“building block” in EPA’s Clean Power Plan is not sufficiently aggressive. The report argues that, just relying on existing trends and compliance with renewable energy standards, renewable energy can supply 23% of electricity sales nationally by 2030, well above the 12% assumed by EPA.… More
Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very) slightly broader look at potential legal challenges.
First, I still think that the most obvious potential plaintiffs, owners of coal-fired power plants, might indeed have standing issues in challenging a rule which maximizes the options for attaining reductions in GHG emissions.… More