On August 31, 2018, the US Environmental Protection Agency (US EPA) published its proposed rule providing a replacement to the Clean Power Plan (CPP). The proposed rule, named the Affordable Clean Energy (ACE) rule, outlines revised emissions guidelines and the process for states to submit plans for the reduction of greenhouse gas (GHG) emissions from affected electric utility generating units (EGUs). Key components include a shift to “inside-the-fenceline” emission reduction measures at individual sources for the best system of emission reduction (BSER) and proposed changes to applicability requirements for EGUs under the New Source Review (NSR) program. Comments on the proposed rule are currently due on October 31, 2018, and the only public hearing thus far was held in Chicago on October 1, 2018. The Agency is taking steps to organize the comments by indexing each comment solicitation and directing commenters to “include the corresponding identifier” when providing relevant comments.
The CPP remains subject to a stay in the D.C. Circuit Court of Appeals since February 9, 2016. On September 4, 2018, a group of petitioners including seventeen states filed a response and motion requesting the court lift the abeyance and issue a ruling. The basis for the motion included that US EPA does not have sufficient grounds to continue the stay and is unduly prolonging the abeyance. The petition noted that such a decision would not prevent US EPA from pursuing this proposed rulemaking. Additionally, the Agency published an advanced notice of proposed rulemaking on December 28, 2017 seeking comments as to a proposed replacement rule. For a detailed overview of these background events, see this article.