EPA Clean Power Plan: Home Run, Base Hit, or Strikeout?

The world is watching as the Environmental Protection Agency's Clean Power Plan, proposed in June 2014, faces fierce opposition from the coal industry and coal-dependent states.

By Vermont Law School Student Jacquelyn M. Dussault and Professor Patrick Parenteau 

The world is watching as the Environmental Protection Agency's Clean Power Plan, proposed in June 2014, faces fierce opposition from the coal industry and coal-dependent states.

In June, under orders from President Obama, the Environmental Protection Agency proposed an ambitious plan to slash carbon pollution from existing power plants by an estimated 30 percent by 2030. These plants, most of which are coal-fired, account for 40 percent of the nation's CO2 emissions. The plan fulfills a pledge the president made in 2012 at the United Nations climate change meeting in Copenhagen: that the U.S. would cut its emissions by 17 percent by 2020. Coupled with the U.S.-China joint announcement in November to decrease emissions from both countries, the plan provides the United States with greater credibility with the global community in anticipation of the 2015 UN meeting in Paris, where the parties hope to hammer out a new agreement to reduce global emissions of greenhouse gases.

EPA's "Clean Power Plan" is based on § 111(d) of the Clean Air Act (CAA), a little-used provision that raises questions about the scope of EPA's authority to require changes in the way electricity is produced and consumed across the country. Under § 111(d), EPA and states share responsibility for regulating existing sources of pollution. The statute requires that EPA determine the "best system of emission reduction" (BSER) to protect public health and welfare. EPA then must use BSER to calculate the level of emission reductions required for each state. States may choose from a variety of options to achieve their emission goals.

Under EPA's proposal, BSER consists of four "building blocks": 1) technology improvements to make coal plants more efficient, 2) increased use of high-efficiency, natural gas combined cycle plants, 3) increased use of renewables and other low/zero-emitting facilities, and 4) demand-side energy efficiency. The blocks were created as severable pieces so that if one or more is struck down, the others may survive.

There is little controversy over the first block, which would reduce emissions by about 6 percent. But there is fierce opposition to the remaining blocks from the coal industry and coal-dependent states. Opponents argue that EPA has exceeded its statutory authority by going "outside the fenceline" to require changes in the way states manage their electricity programs. This issue may well turn on what Congress meant by its use of the word "system" in §111(d). EPA says it means the entire integrated system of electricity generation and distribution. Opponents argue that it must be limited to the system of pollution controls at individual facilities—"inside the fence." Under EPA's interpretation, states get maximum flexibility in designing strategies that are cost-effective, tailored to their individual circumstances, and phased in over 15 years. Under the opponents' interpretation, EPA would be forced to require prohibitively expensive retrofit of experimental carbon capture and sequestration systems in order to achieve emission reductions.

Even before these substantive issues can be addressed, however, EPA's plan faces a more immediate legal challenge. Lawsuits have been filed by several coal-reliant states and by Murray Energy in an attempt to derail the Clean Power Plan. The suits, which are pending in the D.C. Circuit, seek to exploit a legislative glitch in the way §111(d) was amended in 1990. In short, Congress passed conflicting versions of the 1990 amendments to §111(d). The amendment passed by the House prevents the EPA from regulating under §111(d) any industrial source that is regulated under §112 (b), which would include coal-fired plants because they emit mercury. The Senate amendment only prevents EPA from regulating the §112(b) hazardous pollutants under §111(d), rather than limiting the agency's authority to regulate industrial sources.

EPA argues that the Senate version must hold because adopting the House version would read §111(d) out of the statute. EPA is counting on the fact that the Supreme Court has deferred to EPA interpretation of ambiguous language in the Clean Air Act a number of times, most recently in the cross-state air pollution case last term.

It is likely that the D.C. Circuit will rule that the challenges to the rulemaking are premature until the rule becomes final in June 2015. Ultimately, the Supreme Court may once again be called upon to decide how far EPA can go in using the Clean Air Act to address the very real and worsening consequences of climate disruption.

Image courtesy Public Domain Pictures

About the Authors

Jacquelyn Dussault, JD’16, is from Herndon, Va., and a Vermont Journal of Environmental Law staff editor. Jacquelyn attended Virginia Polytechnic and State University, double-majoring in international business and history. Prior to arriving at VLS, Jacquelyn worked for Commonwealth Trading Partners in Alexandria, Va., in support of numerous government programs, including the Commercial Law Development Program. Passionate about the environment, Jacquelyn wants to get people engaged in conservation and sustainability efforts on both a local and global scale.

Patrick A. Parenteau is senior counsel at the Environmental and Natural Resources Law Clinic and professor of law at VLS. He is nationally recognized for his expertise regarding endangered species and biological diversity, water quality and wetlands, environmental policy and litigation, and land use and property rights.

Ben Gustafson is a second-year JD student and is the staff editor at Vermont Journal of Environmental Law. He graduated from the University of Minnesota and hopes to practice environmental law.

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