CPP Rule meets Clean Air Act requirements — legal experts

Source: Amanda Reilly, E&E reporter • Posted: Wednesday, September 14, 2016

The Clean Power Plan falls squarely within the bounds of the Clean Air Act, a trio of law professors at New York University argue in a new policy brief.

In the paper released yesterday, the experts from NYU’s Institute for Policy Integrity contend that U.S. EPA’s foes are incorrect that the agency “dramatically overstepped its authority” in issuing the rule to reduce the power sector’s carbon footprint.

“It is certainly true that EPA’s regulatory authority over existing power plants is not boundless,” the NYU professors wrote. “But critics are wrong to suggest that the Clean Power Plan represents a ‘dramatic overstepping’ of these statutory boundaries.”

EPA’s Clean Power Plan requires states to develop plans to reduce CO2 emissions from existing power plants. The Supreme Court stayed the rule in February while massive litigation over it plays out.

On Sept. 27, the full U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear more than 3 ½ hours of arguments over the rule (Greenwire, Aug. 17).

NYU’s Richard Revesz, Denise Grab and Jack Lienke said in their policy brief yesterday that EPA abided by each of the eight “significant constraints” contained in the Clean Air Act’s Section 111 when it issued the Clean Power Plan.

Those include the requirement that EPA identify the “best system of emission reduction,” or BSER, and consider the amount of emissions reductions that system will produce. EPA must also consider cost, indirect environmental effects, energy requirements and whether the system has been “adequately demonstrated.”

The section also requires that EPA’s guidelines translate into “standards of performance” for individual sources of pollution and give states flexibility to account for the “remaining useful life” of existing sources.

“The plan explicitly acknowledges and respects each of Section 111’s constraints on EPA’s regulatory authority,” the law professors wrote.

The Clean Power Plan includes three “building blocks” to guide emissions cuts throughout the power sector. Those blocks — improving heat rate at coal-fired steam plants, substituting natural gas combined-cycle plants and switching to renewable generation — have been “adequately demonstrated” and give states flexibility, the NYU brief argues.

The Institute for Policy Integrity earlier this year filed an amicus brief in the D.C. Circuit in support of the Clean Power Plan.

Opponents of the rule say its scope is unprecedented and violates Section 111 of the Clean Air Act in several ways, including by requiring states to adopt standards that cannot be applied to individual power plants.