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61 Infrastructure 1 (2021-2022)

handle is hein.journals/infrastr61 and id is 1 raw text is: AB NRSRCUR N EUAE IDSRE SC IO stru uri Vol. 61, No. 1, Fall 2021 The ACE Rule and the Chevron Doctrine By Robert L. Brubaker and Eric B. Gallon his is the most recent in a series of articles that we have written regarding the Clean Power Plan, which the Environmental Protection Agency (EPA) issued in October 2015. In our first article, Part One: The Clean Power Plan: Legal Challenges and Pros- pects (Part One), published in the Fall 2016 issue of Infrastructure, we analyzed the legal challenges to the plan.' In the second article, Part Two: The Clean Power Plan: Legal Challenges and Prospects (Part Two), puh- lished in the Winter 2017 issue of Infrastructure, we analyzed the prospects of the plan in light of the elec- tion of Donald J. Trump, including the possible legal paths available to the new administration (and its oppo- nents) to roll back (or preserve) the Clean Power Plan.2 This article exam- ines the appellate challenge to the Trump Admin- istration's replacement of the Clean Power Plan with the Affordable Clean Energy (ACE) 1 Rule. Brubaker Gallon Robert L. Brubaker (rbrubaker@porternwright.com), counsel to the firm ofPorter Wright Morris & Arthur LLP specializes in environmental law and the Clean Air Act. He is also general counsel to the Ohio Chemistry Technology Council and a past chair of the ABA Infrastructure and Regulated Industries Section. Eric B. Gallon (egallon@porterwright.com), a partner at Porter Wright Morris & Arthur LL1 focuses on complex business and corporate litigation dealing with energy law, environmental law, and complex commercial disputes. Image twilightproductions via Getty Images When the inevitable appeals were filed challenging the Obama Administration's greenhouse gas emis- sion rules for existing power plants (the Clean Power Planj)-with major industry groups, environmental advocacy groups, almost all the states, members of Con- gress, and many amicus participants lined up for and against the rules-we anticipated an eventual Supreme Court showdown on the doctrine of deference that has evolved since the landmark 1984 decision in Chevron U .S.A. Inc. v. Natural Resources Defense Council, Inc. The first-ever Supreme Court stay' of a rule that the D.C. Circuit refused to stay convinced us that the case was destined for Supreme Court review. The Clean Power Plan had all of the ingredients to test the outer limits of Chevron deference. It was one continued on page 8 INSIDE: B dN tB res m ,Rg at nsC nSiuae nesm tinBod adI rsru ur oC se heDigital Divide . .. Page 3 Published in Infrastructure, Volume 61, Number 1, Fall 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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