EPA’s Authority in Doubt: Does the Clean Air Act Give “Power” to the Clean Power Plan?
Flora Ji
In August 2015, President Obama and the United States Environmental Protection Agency (EPA) announced the Clean Power Plan (CPP): the first-ever carbon pollution regulation for existing fossil fuel power plants. Under the CPP, the EPA sets CO2 limits and the reduction targets for existing fossil fuel-fired power plants, and states have the flexibility to adopt their own plans to achieve those targets.[1] By 2030, the EPA expects the CPP to reduce CO2 emissions from the electric sector to 32% below 2005 levels.[2] Energy-related CO2 emissions contribute to 80% of total United States greenhouse gas emissions,[3] which mainly come from the electricity sector.[4] Thus, having the country’s major source of carbon emissions under control could go a long way in combating climate change. In order to achieve these reduction standards, fossil fuel industries will be on the chopping block. To stop the EPA from moving forward, fossil fuel companies and several states have taken their disagreements to court since the CPP was first proposed. Fourteen coal states, led by West Virginia and the nation’s largest coal company, Murray Energy Corporation, filed a suit against the proposed Plan, but the court refused to review the proposed agency action before it became final.[5]
On October 23, 2015, right after the EPA published the CPP in the Federal Register, twenty-four states jointly challenged the CPP by filing a petition for review in the United States Court of Appeals for the District of Columbia.[6] Attorney generals from these twenty-four states asserted that the CPP “is in excess of the agency’s statutory authority, goes beyond the bounds set by the United States Constitution, and otherwise is arbitrary, capricious, an abuse of discretion, and not in accordance with law.”[7]
Among potential legal challenges, this Note will focus on two conflicting amendments of the Clean Air Act, known as the legislative “glitch.”[8] The EPA pursued its authority under § 111(d) of the Clean Air Act for this rulemaking. The statute first enacted as the following.
When Congress amended the Clean Air Act in 1990, two amendments of § 111(d) were signed into law, one from the Senate and one from the House.[9] The Senate amendment corrected the cross reference of the section number from 112(b)(1)(A) to 112(b) because 112(b) has no subsections.[10] Not changing the 1970 version substantively, the Senate version allows the EPA to regulate any pollutant that is not regulated under § 108 or § 112 of the Clean Air Act. Carbon has not been regulated under these two provisions, thus the EPA has the authority to regulate carbon emissions through the CPP.[11] On the other hand, the House version not only corrected the section number, but also prohibited regulation of a “source category” that is regulated under § 112.[12] The EPA does not contend that one amendment overrides the other. Instead, the agency states that the two amendments do not conflict, and also do not bar regulation of pollutants from a source that is regulated under § 112.[13]
This Note will analyze the outcome of judicial review on this issue based on statutory interpretation, legal precedents, and public policy implications. More specially, this Note will address whether a court will find the EPA’s interpretation of the two amendments reasonable and apply Chevron deference.
Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.
[1] Carbon Pollution Emissions Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60).
[2] Jonathan L. Ramseur & James E. McCarthy, Cong. Research Serv., R44145, EPA’s Clean Power Plan: Highlights of the Final Rule (2015).
[3] Emissions of Greenhouse gases in the U.S., U.s. Energy Info. Admin. (Mar. 31, 2011), http://www.eia.gov/environment/emissions/ghg_report/ghg_carbon.cfm.
[4] Sources of Greenhouse Gas Emissions, U.S. Envtl Prot. Agency, http://www3.epa.gov/climatechange/ghgemissions/sources/electricity.html (last visited Oct. 20, 2015).
[5] Coral Davenport, Court Gives Obama a Climate Change Win, N.Y. Times (Jun. 9, 2015), http://www.nytimes.com/2015/06/10/us/coal-epa-clean-power-plan.html?_r=0. The Administrative Procedure Act and the Clean Air Act § 307 only authorize judicial review for final agency actions. 5 U.S.C. § 701 (1966); 42 U.S.C. § 7607(b) (1955).
[6] Petition for Review, West Virginia v. EPA, No. 15-1363 (D.C. Cir. Oct. 23, 2015), http://www.ago.wv.gov/pressroom/2015/Documents/File-stamped%20petition%2015-1363%20(M0108546xCECC6)-c1.pdf.
[7] Id.
[8] Legal Challenges—Overview & Documents, environment & Energy Publishing, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal, (last visited Nov. 13, 2015).
[9] Clean Air Act, Pub. L. No. 101-549, §108(g) & §307(a) 104 Stat. 2398, 2574 (1990).
[10] §307(a), 104 Stat. at 2574.
[11] Clean Air Act Amendments of 1970, Pub. L. No. 91-604, §111(d), 84 Stat. 1676, 1684. 42 U.S.C. § 7411(d).
[12] §108(g), 104 Stat. at 2467.
[13] Carbon Pollution Emissions Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,710–11 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60).