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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

Examining Agency Authority: Mexichem Fluor, Inc. v. EPA - DC Circuit

Alexander Kritikos August 21, 2017
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In a nearly 30 year old Duke Law Journal article, Justice Scalia asked with regard to Chevron deference, “How clear is clear?” Last week in Mexichem Fluor, Inc. v. EPA, Judges Brett Kavanaugh and Robert Wilkins took opposing views on whether section 612 of the Clean Air Act is clear enough to stop at Chevron’s first step. That section provides in part that ozone-depleting substances “shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.”

Despite the EPA’s statements over the years that section 612 doesn’t give the agency authority to require the replacement of non-ozone-depleting substances, that’s just what the EPA did in 2015. After the EPA concluded that hydrofluorocarbons (HFCs) contribute to climate change (but don’t deplete the ozone layer), the agency promulgated a final rule that moved HFCs from the list of safe substitutes to prohibited substitutes.

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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

Federal Regulation, Judicial Stays, and the Right to Appeal

J. Kennerly Davis, Brian Taylor Goldman January 03, 2017
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The election results have raised serious doubts about the future of President Obama’s Clean Power Plan (“CPP” or “Plan”).  During the campaign, President-elect Trump repeatedly moved to kill the Plan outright.

There are, of course, many legal complexities associated with the requirements of the Clean Air Act and federal administrative procedure.  Observers differ about the options available to the new administration, and about whether the Plan will actually be repealed or simply modified to some extent. [Read More]

Executive Branch Review

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Members of Congress File Amicus Brief in Opposition to EPA’s Clean Power Plan

A Member of Practice Groups Leadership March 10, 2016
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On February 23, 2016, the Chairman of the Senate Environment and Public Works Committee, Sen. James Inhofe (R-OK), joined by 204 other Members of Congress, filed an amicus brief with the D.C. Circuit in opposition to EPA’s Clean Power Plan. The brief argues, among other things, that the Clean Power Plan violates the Clean Air Act’s foundational principle of cooperative federalism... [Read More]

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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

SCOTUS Issues Stay on EPA's Clean Power Plan

Daren Bakst, Nicolas Loris February 12, 2016
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In a significant setback to the Obama administration’s climate agenda, five Supreme Court justices prevented the Clean Power Plan from taking effect until after a challenge from 25 states, four state agencies, and dozens of industry groups until the review in the courts has been completed. Chief Justice John G. Roberts and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas voted to stay the implementation of the rule, while 4 others would have denied the challengers’ application for a stay. [Read More]