Academic journal article Harvard Law Review

Environmental Law - Clean Air Act - EPA Interprets the Clean Air Act to Allow Regulation of Carbon Dioxide Emissions from Existing Power Plants

Academic journal article Harvard Law Review

Environmental Law - Clean Air Act - EPA Interprets the Clean Air Act to Allow Regulation of Carbon Dioxide Emissions from Existing Power Plants

Article excerpt

ENVIRONMENTAL LAW--CLEAN AIR ACT--EPA INTERPRETS THE CLEAN AIR ACT TO ALLOW REGULATION OF CARBON DIOXIDE EMISSIONS FROM EXISTING POWER PLANTS.--The Clean Power Plan, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60).

On August 3, 2015, President Obama announced the finalization of the Clean Power Plan (1) (CPP), a regulation he described as "the single most important step America has ever taken in the fight against global climate change." (2) The CPP marks the Environmental Protection Agency's (EPA's) first foray into regulating carbon dioxide emissions from existing power plants and, with the simultaneous enactment of regulations setting carbon dioxide emissions standards for new power plants, (3) represents an unprecedented exercise of the EPA's jurisdiction over the energy sector. (4) While some argue that the changes the EPA is asking states to make are beyond the bounds of its statutory authority, (5) the EPA's first fight appears to be over whether the agency has the authority to regulate greenhouse gas emissions from existing power plants at all. Whether the EPA has such authority will come down to the reading of one provision of the Clean Air Act: section 111(d). (6)

In the year between issuing its proposed (Proposed Rule) and final (Final Rule) versions of the CPP, the EPA substantially altered its approach to interpreting section 111(d). While both readings reach the same conclusion and result in the EPA regulating the same universe of sources, the new legal analysis reveals the EPA as an agency responding to King v. Burwell, (7) the Affordable Care Act (ACA) case decided some five weeks before the Final Rule was announced. As one of the first major pieces of regulation released post-King, the CPP may serve as an early example of how agencies will justify their statutory interpretations in a time of uncertain relations between courts and agencies.

On June 25, 2013, President Obama issued a memorandum directing the EPA "to use [its] authority under sections 111(b) and 111(d) of the Clean Air Act to issue standards, regulations, or guidelines, as appropriate, that address carbon pollution from modified, reconstructed, and existing power plants and build on State efforts to move toward a cleaner power sector." (8) On June 18, 2014, the EPA proposed a rule in the Federal Register to regulate emissions from existing power plants. (9) The Proposed Rule aimed to reduce carbon dioxide emissions from the power sector thirty percent from 2005 levels by 2030 and to achieve net climate and health benefits of between $48 and $82 billion. (10) These benefits were to be achieved through the enforcement of "[s]tate-specific emission rate--based CO2 goals" as permitted by section 111(d), with states free to use an array of policy tools to meet their targets, (11) including energy efficiency and renewable portfolio standards. (12)

The public response was immense and immediate. The EPA received more than 4.3 million comments on the proposal. (13) What is more, industry members "champing at the bit to challenge EPA's anticipated rule" sought to prevent the rule from being finalized by bringing a claim in the D.C. Circuit, which dismissed the claim as premature. (14) When the EPA announced the Final Rule on August 3, 2015, it took only ten days for a group of states to petition the D.C. Circuit for an emergency stay of the rule, even before the rule had been published in the Federal Register. (15) This petition was also dismissed as not meeting the "stringent standards" required for extraordinary relief. (16)

The final Clean Power Plan differs in many substantive respects from the Proposed Rule, including, notably, its removal of consumer-side energy efficiency standards as a factor in the calculations used to set target emission rates. (17) In the Final Rule, the EPA also "reconsidered its previous interpretation" of section 111(d) (18) : instead of finding section 111(d) contradictory, and therefore ambiguous, as argued in the Proposed Rule, the Final Rule attempted to reconcile the potentially conflicting texts. …

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