Hours Before Inauguration, Clean Power Got A Clean Slate From Federal Court

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Whelp, it’s all over but the shouting. Newly minted US President Joe Biden sailed into office on a clean power platform, and that was going to be a tough row to hoe, but it just got a lot less tough. On Tuesday evening the DC Circuit Court of Appeals tore into one of the outgoing administration’s top energy policy accomplishments — the Affordable Clean Energy Rule — and left nothing behind but rubble and dust.

us affordable clean energy power
The Affordable Clean Energy rule has bitten the dust, clearing the way for Clean Power Plan V.2.0. (power plant map via US EPA).

Clean Power: How It Started…

For those of you new to the topic, it all began when the Obama-era Environmental Protection Agency created the Clean Power Plan in 2015. The basic idea was to include greenhouse gas emissions in the category of air pollutants that EPA is authorized to regulate.

The timing was significant, as the rule was announced in the runup to the much-anticipated COP21 meeting on December 15 of that year, when President Obama signed the US onto the Paris Agreement on climate change. The Clean Power Plan was to affirm America’s leadership position in the sparkling green future of the global economy.

The Clean Power Plan made sense to everyone except for fossil fuel stakeholders and their network of allies, who promptly took the EPA to court.

When Obama left office in January 2017, the Clean Power Plan was still in legal limbo. It never went into effect. Adding insult to injury,  the Trump administration pulled the US out of the Paris Agreement in 2017.

Nevertheless, the US coal industry lost its grip on power generation in the US anyways. That was partly because state and local jurisdictions had already adjusted their policies around the Clean Power Plan, under the assumption that it would take effect some day. Market forces in the form of low-cost natural gas also did much of the heavy lifting.

Speaking of market forces, many leading US energy buyers in the corporate world were  on board with the clean power transition, and they supported Obama’s clean power policy with their pocket books. In the weeks and months leading up to December 15, 2015, they negotiated huge wind and solar buys. Powerful new financial instruments have also popped up to help energy customers make the switch.

As a leading energy buyer, the US Department of Defense has also glommed onto the clean energy trend, helping to grow the market for renewables.

On top of all that, all throughout the Trump administration the US Department of Energy has promoted and funded renewables-friendly activities. Last year alone saw a major new energy storage initiative, a reboot of an Obama-era push for universal access to affordable solar power, and a burst of activity in the offshore wind area.

How It Changed Into The Affordable Clean Energy Rule…

Where were we? Oh right, the Affordable Clean Energy Rule. EPA rescinded the Clean Power Plan issued the new Affordable Clean Energy Rule on June 19, 2019.

From EPA’s perspective, the idea was to replace “the prior administration’s overreaching Clean Power Plan (CPP) with a rule that restores the rule of law and empowers states to continue to reduce emissions while providing affordable and reliable energy for all Americans.”

That’s not how a lot of other people saw it, but whatever. The basic idea behind the Affordable Clean Energy rule was to have states take the lead on the nitty-gritty of reducing emissions, based on EPA guidelines.

EPA had high hopes for ACE from a an economic perspective, projecting that the new rule would result in annual net benefits of $120 million to $730 million (quite a spread!).

As for reducing greenhouse gas pollution, EPA claimed that by 2030 the new rule would cut CO2 emissions related to power generation by up to 35% compared to a 2005 benchmark.

That’s not much of a lift for the new rule. EPA also stated that “additional expected emissions reductions based on long-term industry trends” would be a significant factor in reaching that 35% goal, which circles back around to all that activity taking place after the Clean Power Plan was cast into the waters of the US judicial system.

For that matter, in a greenhouse gas inventory dated April 13, 2020, EPA reported that power sector emissions have already fallen 27% compared to 2005. Slipping in an extra 8% in the next 10 years will be a piece of cake, considering that researchers are still hammering away at the cost of solar power and other renewables.

…How It Ended

Anyways, it’s all water under the bridge now. On Tuesday evening the DC Circuit Court of Appeals sparked a media firestorm when it rendered a decision on the Affordable Clean Energy rule, which is no small feat considering all the other news going on.

Julie McNamara, senior energy analyst in the Climate and Energy Program at the Union of Concerned Scientists, was at the ready with a statement.

“The D.C. Circuit has issued a resounding rebuke of the administration’s Affordable Clean Energy rule, confirming what was glaringly apparent from the start,” she stated, adding that “The administration willfully misconstrued the Clean Air Act and acted unlawfully in adopting a rule that failed to protect the environment and public health.”

“I’m heartened by this clear rejection of the administration’s repeated efforts to subvert the interests of the public in favor of ideology and special interests,” she continued. “Today’s ruling, coupled with last week’s failure by the administration to roll back carbon emission standards for new coal plants, has revealed the administration’s rhetoric as nothing but hot air.

Wait, how many rollbacks are we talking about here? A methane emissions rollback is also in the mix somewhere in the mix, but that’s a whole ‘nother can of worms.

More Clean Power For Coal States

For those of you keeping score at home, the DC Circuit case was The American Lung Association and American Public Health Association vs. EPA and Andrew Wheeler.

Scroll down to page 145 and you’ll find quite a few pithy comments on the Affordable Clean Energy rule. They didn’t just vacate and remand, they smacked down.

Here’s a sample:

“The EPA did not even hint at how or whether it determined that prolonging public exposure to ongoing harms from pollutants emitted by existing source categories could be justified consistent with the core objectives of the Clean Air Act. That failure is irrational, especially in the face of the EPA’s continued adherence to its 2015 finding of an urgent need to counteract the threats posed by unregulated carbon dioxide emissions from coal-fired power plants.”

“Petitioners called the EPA’s attention to an important aspect of the regulatory problem, and the EPA looked away,” the Court continued. “The EPA offered what is at best a radically incomplete explanation for extending the compliance timeline.”

“It offered undeveloped reasons of administrative convenience and regulatory symmetry, even as it ignored the environmental and public health effects of the Rule’s compliance slowdown,” they added.


More Clean Power For Coal States

Among those to pick up the DC Circuit story was the West Virginia News organization, which is of particular interest because of West Virginia’s status as an iconic coal producing state.

“The court concluded the ‘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,‘” West Virginia News reported, noting that “The EPA under the direction of Biden — who was vice president to Obama — will likely forge a new rule with more regulation than the ACE.”

West Virginia News got hold of their home state US Senator Shelley Moore Capito for comment, so follow that link (here it is again) for all the juicy details. For those of you on the go, let’s just say that Senator Capito was none too pleased.

“I will have pointed questions for the Biden administration and its nominees concerning its plans and their legality as it relates to regulating the power sector to reduce greenhouse gas emissions,” Capito told West Virginia News.

Well, she better sharpen those points before West Virginia takes a deep dive into the sparkling green future.

Although West Virginia has been squeezed out of the renewable energy march, that could change pretty quickly. Part of the plan could involve repurposing old coal fields for renewables. That is more complicated than it may seem, partly because it could depend on the ability to build new transmission lines. Nevertheless, the coal-to-solar approach has been bandied about since at least 2011, when the town of Williamson — home of the “billion-dollar” coal field — hosted a solar jobs fair.

The idea kind of stalled out for a while, but solar stakeholders have continued to lobby for a renewables-fueled renaissance in West Virginia, and now the skyrocketing growth of the data center sector has breathed new life into their efforts.

The basic idea would be to co-locate new data centers at or near coal-to-solar projects,

That’s the idea behind a federally funded, 3.5 megawatt solar project that launched in Wise County in 2019. That might not sound like much but it’s a giant step up from the state’s current portfolio of just 10 or so megawatts in installed solar capacity.

Last year, West Virginia News also reported that Toyota and the energy firm AEP are behind a new 110-megawatt wind farm planned for Grant and Mineral counties, where some other interesting activity is taking place in the area of renewables and energy efficiency.

Hold on to your hats!

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Image source: US EPA, map of US power plants.

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Tina Casey

Tina specializes in advanced energy technology, military sustainability, emerging materials, biofuels, ESG and related policy and political matters. Views expressed are her own. Follow her on LinkedIn, Threads, or Bluesky.

Tina Casey has 3237 posts and counting. See all posts by Tina Casey