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Small Section Leads to Powerful Plan: Is the EPA’s Clean Power Plan Building Block 3 a Permissible Construction of the Clean Air Act § 111(d)

Small Section Leads to Powerful Plan: Is the EPA’s Clean Power Plan Building Block 3 a Permissible Construction of the Clean Air Act § 111(d)

Ashleigh Krick 

The Environmental Protection Agency’s (EPA) Clean Power Plan is the first time the EPA has set carbon dioxide (CO2) emission guidelines on fossil fuel power plants.[1] The EPA considers the Clean Power Plan a “historic and important step” in reducing the United States’ CO2 emissions, and an example towards addressing global climate change.[2] As a direct result of the Clean Power Plan, the EPA projects the utility power sector will reduce its CO2 emissions to “32% below 2005 levels” by 2030.[3] When predicting this reduction in CO2 emissions, the EPA relied heavily on the growth of renewable electricity generating sources to assist the utility power sector in reaching their emission reduction guidelines.[4] However, not everyone approves of the Clean Power Plan, 27 states and many industries challenge the Clean Power Plan, arguing it is an impermissible construction of the EPA’s authority under the Clean Air Act (CAA) § 111(d).[5]

In promulgating the Clean Power Plan, the EPA relied on the CAA § 111.[6] Section 111 authorizes the EPA to take two actions. First, the EPA must identify categories of stationary sources that emit significant quantities of certain air pollutants the EPA regulates as being harmful to human health and the environment.[7] Once the EPA has identified such categories of stationary sources, the EPA must set national emission guidelines for any new sources in that category.[8] Any new stationary sources in the EPA-identified categories must abide by the national emission guidelines.[9] In addition to regulating new stationary sources, § 111(d) permits the EPA to regulate existing sources in the EPA-identified categories based on the “best system of emission reduction” (BSER) demonstrated for the air pollutant from the source category.[10] The EPA concluded BSER for CO2 emissions includes three measures: (1) increased efficiency of existing coal power plants, (2) substitute electricity generation from high-emitting natural gas and coal power plants with existing lower-emitting natural gas combined cycle power plants, and (3) substitute electricity generation from fossil fuel power plants with renewable electricity generating sources.[11] Under § 111(d), states have the responsibility to develop and implement plans to reduce emissions from existing sources based on the EPA’s BSER determination.[12] The EPA grants each state the option to choose what works best for them and then implement plans to reach their CO2 emission reduction goals.[13]

Seconds after the Federal Register published the Clean Power Plan, 27 states and many industries filed lawsuits challenging its legal basis.[14] Immediately, the plaintiffs motioned for a stay arguing they “are being immediately and irreparably harmed by EPA’s illegal effort to force States to reorder their electrical generation systems.”[15] On January 21, 2016, the D.C. Circuit Court of Appeals denied the plaintiffs’ stay motion finding they did not meet the strict requirements.[16] However, on February 9, 2016, the Supreme Court granted the plaintiffs’ petition for a stay on the Clean Power Plan until the litigation is final.[17] Now, the D.C. Circuit Court will turn to the question of whether the EPA’s Clean Power Plan is a permissible construction of the CAA § 111(d).[18] The plaintiffs’ argue that under the CAA § 111(d) the EPA cannot consider emission reduction measures beyond what is achievable at a single stationary source.[19] Therefore, the plaintiffs’ conclude the EPA could not consider increased renewable energy electricity generation as BSER because it reaches far beyond emission reduction measures that a single power plan can be accomplish.[20] However, the EPA argues § 111(d) provides them with the discretion to include emission reduction measures beyond the power plant.[21] Therefore, the D.C. Court will decide the scope of the EPA’s authority under § 111(d) and discretion when determining BSER.[22]

This Note analyzed whether the EPA permissibly interpreted BSER under CAA § 111(d) to include measures of emission reduction beyond the power plant, or whether BSER is limited to emission reduction an individual power plant is capable of achieving. This Note concluded that CAA § 111(d) grants the EPA broad discretion to determine what BSER is for a pollutant from a category of stationary sources.[23] The EPA had the authority under the CAA § 111(d) to determine that BSER for CO2 emissions includes either technology applied to a fossil fuel power plant, or increased generation from combined cycle natural gas power plants or from renewable energy technology. Therefore, the EPA’s Clean Power Plan is a permissible construction of CAA § 111(d). States should continue to develop their state implementation plays in order to comply with the Clean Power Plan once the litigation is resolved.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.


[1] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662, 64665 (Oct. 23, 2015).

[2] Clean Power Plan for Existing Sources, Envtl. Prot. Agency, http://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants (last updated Nov. 20, 2015).

[3] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64665.

[4] Id.

[5] Legal Challenges – Overview & Documents, E & E Publishing, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal (last visited Feb. 14, 2016) (arguing the EPA is forcing them to “reorder their electrical generation systems”).

[6] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64663.

[7] The air pollutants EPA regulates under § 111 must not be criteria, hazardous, or toxic regulated under another section of the Act. Standards of Performance for New Stationary Sources, 42 U.S.C. § 7411(b) (2015).

[8] These national emission standards are federally enforceable. Id.

[9] Id.

[10] Id. § 7411(d)

[11] Renewable electricity generating sources refer to zero-emitting sources such as solar, wind, and hydropower. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64803.

[12] Id.

[13] Id. at 64826.

[14] The D.C. Circuit Court of Appeals consolidated the lawsuits into one. Legal Challenges – Overview & Documents, E&E Publishing, LLC, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal (last visited Feb. 14, 2016).

[15] State Petitioners’ Motion for Stay and for Expedited Consideration of Petition for Review at 1, West Virginia v. U.S. Envtl. Prot. Agency, (D.C. Cir. Oct. 27, 2015) (No. 15-1363).

[16] Order at 2, West Virginia v. U.S. Envtl. Prot. Agency, (D.C. Cir. Jan. 21, 2015) (No. 15-1363).

[17] Jonathan H. Adler, Supreme Court puts the Brakes on the EPA’s Clean Power Plan, Wash. Post (Feb. 9, 2016) https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/09/supreme-court-puts-the-brakes-on-the-epas-clean-power-plan/.

[18] Id.

[19] Id.

[20] Id.

[21] Legal Challenges – Overview & Documents, supra note 14.

[22] The decision will probably be appealed to the Supreme Court.

[23] See Sierra Club v. Costle, 657 F.2d 298, 319 (D.C. 1981) (finding section 111 requires EPA to balance multiple factors); Lignite Energy Council v. Envtl. Prot. Agency, 198 F.3d 930, 933 (D.C. 1999) (holding EPA has “a great degree of discretion” in balancing the factors when determining BSER); New York v. Reilly, 969 F.3d 1147, 1150 (D.C. 1992) (holding EPA “is free to exercise [its] discretion” when determining BSER).

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