Trump Power Plant Proposal Faces High Bar After Loper Bright

Environmental and regulatory attorney Zach Pilchen was interviewed by Bloomberg Law about the U.S. Environmental Protection Agency's (EPA) proposal to roll back power plant greenhouse gas rules under the Clean Air Act (CAA), and the challenges the agency could face in light of the U.S. Supreme Court's Loper Bright ruling. The EPA unveiled this week a proposal to repeal greenhouse gas emission requirements for fossil fuel-fired power plants, based primarily on an untested interpretation that the Clean Air Act allows EPA to consider policy factors when determining whether power plants "contribute significantly" to harmful air pollution. If finalized, industry professionals expect challenges to that interpretation of CAA Section 111. Mr. Pilchen said the Loper Bright decision, which eliminated Chevron deference affording federal agencies leeway in interpreting ambiguous statutes, could make it more difficult for the EPA to defend its final rule.

"After Loper Bright, the playing ground has shifted from, 'is this one of many reasonable ways to read the Clean Air Act?' to 'is this the single best reading of the statute?'" he explained. "That's a much higher bar for the government to clear."

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