The Supreme Court has agreed to review the D.C. Circuit Court of Appeal’s rejection of the Trump administration’s repeal of the Clean Power Plan and its replacement by the Affordable Clean Energy Rule (“ACE Rule”). CEI was a party in the lower court case arguing against the use of the Clean Air Act’s catch-all provision but was dismissed due to lack of standing.

Statement by CEI attorney Devin Watkin:

“The Supreme Court will be reconsidering EPA’s massive claims of authority to re-design entire industries rather than merely requiring improved technology. This is excellent news because the agency lacks such massive power under the law.

Statement by Marlo Lewis, CEI Senior Fellow:

“CEI applauds the Supreme Court for deciding to review the D.C. Circuit panel’s incoherent vacatur of the Affordable Clean Energy (ACE) rule. The D.C. Circuit struck down ACE because the Trump EPA said its interpretation of Clean Air Act Section 111(d) is the ‘only permissible interpretation’. The panel objected to EPA’s claim that the text’s meaning is ‘clear and unambiguous’. The panel said it could have upheld ACE had EPA only said it was basing ACE on its judgment rather than Congress’s judgment.

“News flash: Every interpretation of a statute is an act of judgment. More precisely, every interpretation of a statute is a judgment about the lawgiver’s judgment. In effect, the D.C. Circuit panel overturned ACE because EPA claimed its statutory interpretation is correct without adding the magic words ‘in our judgment’. That is grasping at straws.

“Section 111 clearly defines ‘stationary source’ as a ‘building, structure, facility, or installation’. That means any ‘best system of emission reduction’ (BSER) must be a system applied to and at a specific generating unit (‘within the fence lines’).

“The Clean Power Plan (CPP), in contrast, treated the entire North American electric power sector as a single source. And on that basis defined BSER as ‘generation shifting’ between and among fossil and renewable generating units.

“But the power sector is not a source (building, structure, facility, or installation), it is a market process. The Trump EPA drew the only reasonable conclusion: The CPP’s conception of ‘source’ and the BSER based thereon conflict with the clear and unambiguous meaning of the text. In short, the CPP conflicts with Congress’s judgment.”

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