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7 Geo. Wash. J. Energy & Envtl. L. 1 (2016)

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                                            ARTICLES







                       The Clean Power Plan:



Testing the Limits of Administrative



                  Law and the Electric Grid




                           Emily Hammond* and Richard J. Pierce, Jr.**


The U.S. Environmental Protection Agency's (EPA's)
        Clean  Power   Plan  (CPP)  is one  of the most  con-
        troversial and  highest-stake rules ever issued  by any
agency.'  Released in final form  on August   4, 2015,2 the rule
is aimed  at existing electric power plants and establishes car-
bon  dioxide  emission reduction  requirements   for states. EPA
projects that  if each state meets its target, emissions would
be  about twenty  percent  less than 2012 levels by 2030.3 Pro-
ponents  of the rule maintain  that it is essential to mitigating
the potentially devastating  effects of climate change.4 Oppo-
nents, by  contrast, argue that it is unlikely to be effective for
its intended purpose   and that it jeopardizes the reliability of


*Associate Dean for Public Engagement and Professor of Law, George
Washington  University Law School.

** Lyle T Alverson Professor of Law, George Washington University
Law  School.

The  Authors thank Ann   Carlson, Joel Eisen, Rob Glicksman, Alex
Klass, and members of the PUC Clean Energy Collaborative workshop
for their helpful comments.
1. There are arguably several metrics along which the CPP might qualify: im-
    pact on utilities (compliance costs from $1.4-$8.4 billion annually); climate
    benefits ($20 billion by 2030); or expansive interpretation of statutory author-
    ity. See U.S. ENVTL. PROT. AGENCY, EPA-452/R-15-003, REGULATORY IMPACT
    ANALYSIS FOR THE CLEAN POWER PLAN FINAL RULE at ES-9 to ES-10, ES-20
    (Aug. 2015) (presenting these figures, additional data, and assumptions). A
    coal-industry funded study, by contrast, puts the annual energy sector costs
    at $29-$39 billion and estimates costs to the U.S. economy ranging from
    $64-$79 billion from 2022-2033. NERA EcoN. CONSULTING, ENERGY AND
    CONSUMER  IMPACTS OF EPA's CLEAN POWER PLAN 5 (2015). On the final
    point regarding statutory authority, see infra for our argument that EPA has
    jurisdictional authority to issue the CPP.
2.  Carbon Pollution Emission Guidelines for Existing Stationary Sources: Elec-
    tric Utility Generating Units, 80 Fed. Reg. 64,661, 64,661-65,120 (Oct. 23,
    2015) [hereinafter CCP] (to be codified at 40 C.F.R. pt. 60).
3.  This is a projection, not a requirement. Further, the widely reported require-
    ment of a thirty-two percent reduction below 2005 levels is based on the
    same projection but extrapolated to 2005 because 2005 is the year of refer-
    ence for many of the United States' international commitments. See Nathan
    Richardson, 2005 v. 2012 in EPA' Proposal, RESOURCES FOR FUTURE (June 4,
    2014), http://common-resources.org/blog/2014/2005-vs-2012-epas-proposal
    (explaining common misperceptions regarding the requirements and dates).
4.  Barack Obama, Remarks by the President in Announcing the Clean Power Plan,
    WHITEHOUSE.GOV  (Aug. 3, 2015), https://www.whitehouse.gov/the-press-
    office/2015/08/03/remarks-president-announcing-clean-power-plan (calling
    CPP  single most important step America has ever taken in the fight against
    global climate change).


the electricity grid and the wellbeing  of the  U.S. economy.5
We   are in the awkward position of agreeing with both the
proponents   and the opponents   of the CPP. We   want  the rule
to succeed  in accomplishing   its intended purpose  but fear it
may  have  serious unintended adverse effects on the perfor-
mance   of the U.S.  electricity grid and the economics   of the
power   sector. Further, we  have  serious concerns  about  the
ability of administrative  law doctrine  to manage   the  litiga-
tion that is to come.6
   To  frame  our  discussion, we  offer a few observations  on
the scope  of the Agency   action at issue.7 The CPP   has been
the subject of intense study and  controversy since its proposal
in 2014. After eliciting 4.3 million comments,  EPA   published
the final rule along with a statement of basis and purpose  that
is over 1500 pages  long.' The Agency's  accompanying regula-
tory impact  analysis, technical support, and  legal documents
span  nearly  1000  more.'  The  many controversial substan-


5.  E.g., Nicolas Loris, Four Big Problems With the ObamaAdministrationi Climate
    Change Regulations, HERITAGE.ORG (Aug. 14, 2015), http://www.heritage.org/
    research/reports/2015/08/four-big-problems-with-the-obama-administra-
    tions-climate-change-regulations (The climate impact of the Clean Power
    Plan will be meaningless.); Scott Segal, Lots ofPain With Questionable Benefits,
    U.S. NEWS DEBATE CLUB (Aug. 5, 2015), http://www.usnews.com/debate-
    club/is-obamas-clean-power-plan-a-good-idea/lots-of-pain-with-questionable-
    benefits (We can expect significant potential threat to the electric reliability
    upon which our modern way of life depends.).
6.  Cf Emergency Petition for Extraordinary Writ, In re WestVirgina, No. 15-
    1277 (D.C. Cir. filed Aug. 13, 2015) (seeking emergency stay of CPP prior
    to rule's publication in Federal Register); In re Murray Energy, 788 E3d 330
    (D.C. Cir. 2015) (denying petition for writ of prohibition to stop EPA from
    issuing final rule). As this Article was going to print, the U.S. Supreme Court
    stayed the CPP pending litigation in the D.C. Circuit. North Dakota v. EPA,
    No. 15A793 (U.S. Feb. 9, 2016). As we discuss infra Part II.C., the stay has
    significant consequences.
7.  See also infa Part I (describing major attributes of CPP).
8.  See 42 U.S.C. § 7607(d)(3)(A)-(C) (2012) (mandating that statement of ba-
    sis and purpose include factual data, methodology, and legal interpretations
    and policy considerations underlying rules). This elaboration is distinct from
    that of the Administrative Procedure Act, 5 U.S.C. § 553(c) (2012) (con-
    cise statement of basis and purpose), but it tracks the courts' interpretation
    of the Administrative Procedure Act. Cf Emily Hammond Meazell, Defer-
    ence and Dialogue in Administrative Law, 111 COLUM. L. REV. 1722, 1732
    (2011); Richard J. Pierce, Jr., Waiting for Vermont Yankee III, IV, and V?A
    Response to Beerman and Lawson, 75 GEO. WASH. L. REV. 902, 920 (2007)
    ( [T]he most important factor that explains the length of informal rulemak-
    ings is hard-look review.).
9.  Clean Power Plan for Existing Power Plants, U.S. ENVTL. PROTECTION AGEN-
    cy, http://www2.epa.gov/cleanpowerplan/clean-power-plan-existing-power-


GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW


Winter  201I6

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