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New York leads coalition of 22 states in legal challenge to US EPA's ACE rule

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New York leads coalition of 22 states in legal challenge to US EPA's ACE rule

New York led a coalition of 22 states and seven municipalities Aug. 13 in launching a legal challenge to the U.S. Environmental Protection Agency's replacement for the Obama-era Clean Power Plan.

Called the Affordable Clean Energy, or ACE, rule, the replacement regulation establishes a narrow legal interpretation of the EPA's authority to regulate planet-warming carbon dioxide emissions from existing coal-fired power plants under the Clean Air Act. The far more sweeping Clean Power Plan, which would have set the first-ever federal CO2 emission limits on those generators, was stayed by the U.S. Supreme Court in 2016 before it could take effect.

"The EPA's rule rolls back these limits and will have virtually no impact on these emissions, prolonging the nation's reliance on polluting, expensive coal power plants and obstructing progress of states toward clean, renewable, and affordable electricity generation," the office of New York Attorney General Letitia James said in a news release.

The Aug. 13 legal challenge follows a lawsuit launched July 8 by the American Lung Association and the American Public Health Association seeking review of the rule by the U.S. Court of Appeals for the District of Columbia Circuit. The earlier lawsuit was filed the same day the EPA's new regulation was published in the Federal Register, and the deadline to initiate legal challenges to the ACE rule is Sept. 6.

Plaintiffs are expected to argue that the ACE rule's interpretation of what represents the "best system of emission reduction" under the Clean Air Act is illegal because the resulting regulation would have little impact on CO2 emissions.

Unlike the Clean Power Plan, which encouraged states to shift away from coal-fired power, the ACE rule instead focuses on efficiency upgrades known as heat-rate improvements at individual coal-fired units.

Meanwhile, the U.S. Chamber of Commerce on Aug. 6 moved to intervene in the earlier case in support of the EPA after previously lining up on the opposite side in the litigation over the Clean Power Plan. On Aug. 7, a coalition of American Electric Power Co. Inc. subsidiaries also moved to intervene in defense of the regulation, arguing in a court filing that the ACE rule "represents a return to the traditional practice of setting emission guidelines based on technologies that can be implemented at the regulated units." The coal-heavy power generating companies were joined by coal producers Murray Energy Corp. and Westmoreland Coal Co.

The various petitions for review of the ACE rule are expected to be consolidated into a single legal challenge before the D.C. Circuit, which has jurisdiction over EPA regulations that have a nationwide scope.

Joining New York in the latest legal challenge were state attorneys general representing California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin. Attorneys for the District of Columbia and the cities of Boulder, Colo., Chicago, Los Angeles, New York, Philadelphia, and South Miami, Fla., also signed on to the lawsuit.