On January 19, the last full day of the Trump administration, a three-judge panel of the D.C. Circuit Court of Appeals vacated the Affordable Clean Energy (ACE) rule, the Trump EPA’s replacement rule for the Clean Power Plan. The Clean Power Plan was a cornerstone of the Obama EPA’s efforts to address climate change and would have required electric utilities to shift generation from fossil fuels to renewable resources. That aggressive rule was halted by an unprecedented stay of the rule by the Supreme Court, but a decision on the merits has never been issued because the Trump administration took office and put the litigation on hold. In its January 20 opinion, the D.C. Circuit has now issued the first decision on the merits of the legal issues underlying both ACE and the Clean Power Plan.

Continue Reading Affordable Clean Energy (ACE) Rule Vacated, But Appeal Still Possible

A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al.,[1] a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.

Continue Reading Amicus Briefing Suggests Citizen Suits Are Unconstitutional

In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and,