EPA’s Regulatory Powers and Litigation on Section 111(d) of the Clean Air Act

The Obama administration is taking a preeminent role in improving the environment and combating climate change. One avenue for change, under a directive from President Obama, is an expansion of the EPA’s authority to regulate greenhouse gas (GHG) emissions. Most recently, the EPA has set forth a plan to regulate GHG emissions from existing power plants under section 111(d) of the Clean Air Act.[i] Section 111(d) gives the EPA legal authority to require states to reduce their 2005 carbon dioxide emission levels by 30% by 2030.[ii] The EPA’s plan allows each state to produce its own set of guidelines to meet this goal, which the EPA will review and approve.[iii] Although the legislation has yet to become an enacted law (RIN: 2060-AR33), a number of parties have already taken issue with the EPA’s use of §111(d).[iv]

In August 2014, twelve states (Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South DakotaSouth Carolina, West Virginia, Wyoming) filed a lawsuit against the EPA in the U.S. District Court for the District of Columbia (State of West Virginia, et al. v. U.S. EPA). Their primary claim is that the 2011 settlement agreement under which the EPA derives its authority to regulate existing power plants is unlawful.[v] They argue that existing coal-fired power plants are already regulated under §112 of the Clean Air Act, and therefore, the EPA cannot regulate them under §111(d).[vi] This section explicitly states that standards for performance can only be prescribed if the air pollutant is regulated and if it is not a “new source”as described in the § 111(d).[vii]

In their brief, the plaintiffs cite to American Electric Power v. Connecticut as guiding precedent. In American Electric Power, the court held that the EPA could not regulate sources of pollution that are already regulated. The opinion states, “[t]he Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide from fossil fuel fired power plants.”[viii] However, there is one exception, “[the] EPA may not employ §7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§7408–7410, or the “hazardous air pollutants”program, §7412. See §7411(d)(1).”[ix]

As there has been very little litigation on the issue of EPAs authority under the Clean Air Act, the outcome of this lawsuit remains uncertain.[x] The Clean Air Act has very broad language, which the court can interpret in favor of either party. Some argue that it is very likely that the court will rule in favor of the EPA, given the settlement agreement that transpired in 2011.[xi] Other legal experts suggest that the legal debate will center on whether the EPA should be allowed to set blanket standards for power plants emissions, rather than tailoring the standards to particular types of facilities—depending on the technology available to them.[xii] Additionally, the Supreme Court’s decision to grant certiorari to three lawsuits, all related to the EPA’s new standards on mercury emissions from power plants, will likely affect how the District Court will rule in State of West Virginia, et al. v. EPA.[xiii]

Regardless of what the court’s decision is, there will be consequences for all parties involved in the lawsuit. If the court does uphold the EPA’s use of §111(d), states will have to submit their GHG reduction proposals for approval and it will very likely involve drastic changes in order to meet the stringent goals.[xiv] They will also have the burden of creating cost-effective measures.[xv] States, such as West Virginia, where the coal power plants employ a large number of individuals suggest,“[t]hese rules, if implemented, would cause West Virginia coal miners to lose their jobs and West Virginians’electricity bills to skyrocket.”[xvi] However, the transition to cleaner energy also results in new jobs and infrastructure that will be more sustainable in the long run. The short-term losses that may result from closing coal power plants will likely be offset by the additional employment and economic growth renewable energy industries bring.[xvii]

If the court does not uphold the 2011 settlement agreement and the EPA’s use of §111(d) to regulate existing power sources, the EPA and the Obama administration will face a major setback. While the goal of reducing emissions by 30% in the next fifteen years is ambitious, it is a necessary step that the United States has to take to combat climate change and improve the environment. The EPA can regulate GHG emissions for newly established or previously unregulated power plants, but the core of the issue lies with the more than six hundred coal-fired power plants already in existence.[xviii] Fighting the regulations now may prevent job losses in the short run but the twelve states party to the lawsuit will eventually have to transition to cleaner energy. The EPA will find an alternative way to regulate existing coal-fired power plants as the public health and environmental benefits outweigh these short-term harms.

 

Trisha Parikh is a General Member on MJEAL. She can be reached at tsparikh@umich.edu.

 

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] What EPA is Doing, U.S. Environmental Protection Agency, http://www2.epa.gov/carbon-pollution-standards/what-epa-doing (last visited Nov. 22, 2014).

[ii]Kyle DanishStephen FotisIlan GutherzAvi ZevinGabriel Tabak, EPA Issues Proposed Clean Power Plan to Limit Greenhouse Gas Emissions from Existing Power Plants, Van Ness Feldman LLP, http://www.vnf.com/2929 (last visited Nov. 22, 2014).

[iii] Id.

[iv] Standards of Performance for Greenhouse Gas Emissions from Existing Sources: Electric Utility Generating Units, Regulations.gov, http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OAR-2013-0602).

[v] Proposed EPA Rules for New and Existing Coal-Fired Power Plants, Office of West Virginia Attorney General, http://www.ago.wv.gov/publicresources/epa/Pages/default.aspx (last visited Nov. 17, 2014).

[vi] Petition for Review, State of West Virginia et al. v. U.S. EPA, No. 14-1146 (filed Aug. 1, 2014).

[vii] 42 U.S. Code §7411(a)(5)

[viii] Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2528 (2011).

[ix] Id. at 2537.

[x] Brent Kendall & Alicia Mundy, EPA’s Approach on Carbon Limits to Spark Court Challenges, Wall Street Journal, May 29, 2014, http://online.wsj.com/articles/epas-approach-on-carbon-limits-to-spark-court-challenges-1401406854.

[xi] Id.

[xii] Id.

[xiii] Amy Harder & Brent Kendall, Supreme Court to Review EPA Rule on Power Plant Emissions, Wall Street Journal, Nov. 25, 2014, http://online.wsj.com/articles/supreme-court-to-review-epa-rule-on-power-plant-emissions-1416942022?mod=WSJ_hp_LEFTTopStories

[xiv] Supra note 2.

[xv] Jeremy M. Tarr, et al., Regulating Carbon Dioxide under Section 111(d) of the Clean Air Act: Options, Limits, and Impacts, 17, Nichols Institute Report (2013).

[xvi] Supra note 5.

[xvii] Paul Batistelli, Renewable Energy and Economic Growth Go Hand in Hand for Massachusetts, EcoWatch, http://ecowatch.com/2013/09/20/renewable-energy-economic-growth-massachusetts (last visited Nov. 28, 2014).

[xviii] Supra note 15, at 8-9.

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