DC Circuit Vacates EPA’s Repeal and Replacement of Clean Power Plan

On January 19, 2021, the U.S. Court of Appeals for the D.C. Circuit vacated the 2019 Affordable Clean Energy Rule (ACE Rule), 84 Fed. Reg. 32,520 (July 8, 2019), and remanded the matter to the U.S. Environmental Protection Agency (EPA). The EPA, through the ACE Rule, had sought to repeal and replace the Obama Administration’s predecessor rule, the Clean Power Plan, 80 Fed. Reg. 64,662 (Oct. 23, 2015).

The Court’s decision sends the rulemaking back to the EPA so that the agency may consider the issues and provide new protections. The final paragraph of the Court’s 147-page per curiam opinion states in part: “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.”

There also is a separate 37-page opinion of one of the three Judges on the panel. That opinion concurs in part, concurs in the judgment in part, and dissents in part.

A link to the decision, American Lung Association, et al., v. Environmental Protection Agency, et al., No. 19-1140 (and Consolidated Cases), may be found on the Court’s web site on this page: https://www.cadc.uscourts.gov/internet/opinions.nsf