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The NAM sought review in the U.S. Court of Appeals for the D.C. Circuit of the Environmental Protection Agency’s (EPA) 2015 Clean Power Plan rule governing New Source Performance Standards (NSPS) for greenhouse gases from electric utilities. The rule is an attempt to address emissions from new, modified and reconstructed electric generating units. This case is important for manufacturers because EPA should not rely on policy preferences rather than the rule of law.

The NAM sued the EPA with a broad industry coalition to challenge the NSPS rule. We seek to invalidate the rule to pave the way for a sensible alternative. Our briefs argue that the rule is unlawful because EPA’s conclusions are arbitrary and capricious, not supported by substantial evidence, and fail to make the requisite endangerment findings. In 2017, the D.C. Circuit held the rule in abeyance while the current administration considers whether to revise or rescind the rule.

In 2015, the NAM challenged the EPA’s Clean Power Plan, a rule that went beyond the EPA’s legal authority to regulate carbon dioxide emissions under the Clean Air Act. Before the rule became effective, the U.S. Supreme Court stayed the rule pending the resolution of the litigation. Then, in 2017, the D.C. Circuit held the litigation itself in abeyance to allow the incoming administration to decide whether to rescind or revise the rule. The EPA proposed a replacement rule—the Affordable Clean Energy Rule—in August 2018. A final rule issued in June 2019. With the Clean Power Plan rule replaced by the Affordable Clean Energy Rule, the parties moved to dismiss the case. On September 17, 2019, the court dismissed the case as moot.