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1 [1] (August 11, 2015)

handle is hein.crs/crsmthaafld0001 and id is 1 raw text is: Legal Sidebar 08/11/2015 Part 2 of this two-part Sidebar on likely legal arguments over the Clean Power Plan may be found here. On August 3, 2015, the Environmental Protection Agency (EPA) announced its controversial Clean Power Plan (CPP) to regulate carbon dioxide (CO2) emissions from existing fossil-fuel fired power plants, finalizing a rule proposed by the agency in June 2014. This Sidebar is the first of two summarizing the main legal aspects of the controversy over EPA's authority and interpretation of the relevant statutes, particularly Clean Air Act (CAA) section 111(d), under which EPA issued the CPP. As explained in more detail here, the CPP calls on states to submit plans to EPA that achieve state-specific, rate-based or mass-based goals for CO2 emission reductions from affected electric generating units: existing power plants that use coal, oil, and gas. Under the CPP rule, for states that do not submit plans (or that submit unsatisfactory plans), EPA would establish a federal plan. With that in mind, EPA released its prpieadfedraI -plan, using an emissions trading approach, on August 3 as well. Along with and as a prerequisite for the CPP, EPA also finalized its .anadards for CO2 emissions from new, modified, or reconstructed fossil fuel-fired power plants under CAA section 111(b). CAA section 111(d) requires these new source performance standards to be in place for a source category, such as fossil fuel-fired power plants, before EPA can regulate emissions of the same pollutant from existing sources in that source category. Litigation over the CPP is guaranteed to be vigorous-as previewed by the six lawsuits that were filed against the proposed rule. (All of these suits were dismissed on the basis that the CAA reri iciaI revewto final agency action.) Most of the legal challenges to the CPP likely will turn on the meaning of CAA section 111(d). Because section 111(d) provides little detail, has limited pertinent legislative history, and has not been construed by a court, a wide range of legal arguments for and against the CPP are plausible. Three arguments appear to be raised most often: (1) the inconsistent amendments argument-House language in the 1990 CAA amendments, which arguably bars regulation of CO2 from fossil fuel-fired power plants because they are already subject to limits on hazardous air pollutants (HAPs), should prevail over more permissive Senate language also enacted in the 1990 CAA amendments; (2) the beyond the fenceline argument-the CPP overreaches by considering factors other than technological or operational standards on individual power plants (i.e., within each power plant's fenceline); and (3) arguments regarding the interpretation of the term standards of performance and whether EPA properly considered all of the mandatory factors in issuing the CPP. The second and third arguments, and others, are discussed in Part 2. The inconsistent amendments argument, discussed in a previous Sidebr, arises from the fact that, in amending the CAA in 1990, the House and Senate enacted inconsistent amendments to section 111(d), apparently an inadvertent oversight. The House amendment specifies that section 111(d) does not apply to any pollutant emitted from a source category ... regulated under section 112. Read by itself, this language appears to say that pollutants from source categories already regulated under section 112, governing HAPs, cannot be addressed through section 111(d). Since fossil fuel-fired power plants are now regulated under section 112, there is an argument that the CPP is unauthorized under the House amendment. The Senate amendment, which disallows use of section 111(d) only when the pollutant in question is regulated under section 112, poses no obstacle to EPA's proposal because CO2 is not regulated under section 112. EPA has proposed a way of reconciling the two provisions, giving each some effect, discussed here. In addition, in the preamble to the final CPP, EPA argues that the House amendment is ambiguous and may be interpreted to mean that the section 112 exclusion does not bar the regulation of non-HAP pollutants under section 111(d).

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