EPA has legal precedents for carbon crackdown — experts

Source: Amanda Reilly, E&E reporter • Posted: Sunday, March 20, 2016

A trio of New York University law experts argue in a forthcoming law paper that U.S. EPA has several legal precedents for the Clean Power Plan.

Those precedents include programs under Section 111 of the Clean Air Act — under which EPA issued the carbon program for power plants — and other provisions in the law, according to the paper.

The law professors say they plan to soon file an amicus brief that makes the same point in the ongoing litigation over the Clean Power Plan in the U.S. Court of Appeals for the District of Columbia.

There are “a wide variety of regulations from the CAA’s 45-year-history that provide substantial precedent for the flexible design of the CPP,” their paper says.

The paper will be formally published tomorrow in the legal journal Environmental Law Reporter. NYU law professor and Institute for Policy Integrity Director Richard Revesz and Institute for Policy Integrity senior attorneys Denise Grab and Jack Lienke are authors.

At issue are arguments from opponents that EPA’s Clean Power Plan illegally includes unprecedented “beyond-the-fenceline” provisions that require carbon reductions beyond what an individual power plant can achieve.

The NYU experts argue that several prior EPA regulations under Clean Air Act Section 111 were based on beyond-the-fenceline reduction techniques. Those rules include the George W. Bush administration’s Clean Air Mercury Rule and the Clinton administration’s guidelines for large municipal waste combusters and medical waste incinerators, according to the paper.

Both the mercury rule and the municipal waste guidelines allowed for trading as a compliance mechanism, while the medical waste guidelines required owners of facilities to develop waste management programs. The Bush mercury rule was ultimately vacated by the U.S. Court of Appeals for the District of Columbia Circuit, but the ruling was unrelated to trading or the stringency of emissions budgets.

EPA issued prior regulations under the Clean Air Act’s good neighbor provision, regional haze program and mobile emission provisions that also go “beyond the fenceline,” the law experts argue.

“In a number of these rulemakings, beyond-the-fenceline reduction techniques were used not only as a compliance mechanism,” the law paper says, “but also to determine the stringency of the relevant emission limits, sometimes justifying more stringent restrictions that would otherwise have been imposed.”

The law experts also say EPA programs have previously shifted demand from one energy source to another, including Clean Air Act efforts to address acid rain, which shifted demand from high-sulfur coal to low-sulfur coal.

Environmentalists cited an earlier version of the research in a brief opposing motions for a stay of the Clean Power Plan. The Supreme Court granted the stay in an unprecedented 5-4 decision earlier this month, freezing the program until litigation is resolved.