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21 January 2021

Appeals court unanimously slaps down Wheeler’s coal ruling

The slap in the face delivered by a US court on the last day that Donald Trump was in office, is more likely to sting Andrew Wheeler, the about to be replaced administrator of the Environmental Protection Agency.

The US Court of Appeals has ruled that Wheeler’s biggest attack on environmental protection is not legal, something that no doubt will see Wheeler off Trump’s Christmas tweet list.

In a long, highly technical and unanimous summing up from the three judges presiding, the Affordable Clean Energy (ACE) rule was quashed. For those unfamiliar with it, it was an attempt by Wheeler to allow coal plants to continue to pollute as long as they addressed a limited number of areas of efficiency gains. The previous Obama administration had tried to write a new law, but ended up letting its then EPA interpret the 1956 Clean Air Act and later amendments in a way that is based it on the amount of CO2 that each plant produced.

This has since been used to close down many coal plants, because they could not adhere to its demands economically, and instead of making required upgrades, they tended instead to close and opt for gas or renewable replacements.

The summing up made it clear that the court was really aware on all past events, where the Congress had attempted to pass a new act but failed and had effectively passed the responsibility down to the EPA.

It concluded, “The House succeeded. The President supported it. But that effort stalled in the Senate.” Reminding everyone that in the US it is supposed to be hard to create a new law and that the same fate has befallen dozens of other climate-related bills since.

Effectively President Obama ordered the EPA to do what Congress wouldn’t, and it set its own rules in line with what Congress had intended. Because there is a technical deficiency in the new Trump EPA rule the status quo is to be retained, even though this may still end up being attended to by the Supreme Court at some stage.

What that means is that one further rulemaking from the Trump era is out of the way for the new administration and it can continue to push for expensive improvements in coal plants, most of which could not possible install them economically, resulting in their closure.

The summing up talked about “generation shifting” meaning shifting the electricity generation to a new process as part of the potential solution and how this was envisaged in existing legislation, and so should remain in place.

It defined generation shifting as shifting production from coalfired power plants to facilities that use natural gas or renewable resources.

Part of the technical objections to the new rule related to which section of the 1990 amendments of the Clean Air Act should be used to measure the effectiveness of coal plants, and how Wheeler had suggested it change from section 112 to 111, but the court said this did not reflect the Act’s intention.

The current rule can now be struck and a new head of the EPA is unlikely to raise it again, so that should be the end of the matter.

Wheeler’s rule is now being seen as a deliberate misconstruing of the Clean Air Act and which failed to protect the environment and public health.  The ACE rule was only made on June 19, 2019, and immediately multiple law suits were brought to stop it from ever being used.