The Clean Power Plan is either very legal or very illegal; choose your side

A sub-panel of the House Energy and Commerce Committee is due to hear at a March 17 hearing on the U..S. Environmental Protection Agency’s proposed Clean Power Plan for existing power plants that it is both a terrible overreach by the agency beyond its legal authority and a perfectly legal use of existing Clean Air Act authority.

Wrote hearing witnesss Richard Revesz, the Lawrence King Professor of Law and Dean Emeritus at New York University School of Law, in his March 17 prepared testimony: “EPA’s flexible, cost-minimizing approach is consistent with the law and with over thirty years of EPA Clean Air Act practice, under administrations of both political parties. The Clean Power Plan is not, as its opponents argue, an unprecedented approach that risks economic calamity; instead, it is just another example of EPA doing its job to ensure that polluters account for the cost of their pollution in a manner that will result in substantial net economic benefits to the public.”

Allison Wood, a partner at Hunton & Williams LLP, is due to tell the Subcommittee on Energy and Power: “Section 111(d) of the Clean Air Act has always been an insignificant provision designed to be used rarely. Indeed, it has been used only five times since 1970. EPA’s proposed section 111(d) rule turns this notion on its head and seeks to regulate an enormous part of the economy. The rule suffers from numerous legal deficiencies, including whether EPA even has authority to issue it given that electric generating units are regulated under section 112 of the Clean Air Act. EPA agreed for many years that regulation under section 111(d) occurs only if the source category (rather than the pollutant) is not regulated under section 112. EPA now claims there is ambiguity in the statute due to a clerical error made in the Statutes at Large. EPA is incorrect.

“The proposed rule is also unlawful because it attempts to redefine the statutory term ‘system of emission reduction’ by relying on a dramatic redefinition of the word ‘system’ to broaden the program beyond the source by claiming that it may base a standard of performance on any ‘set of things’ that leads to reduced emissions from the source category overall. This is misguided. A ‘system of emission reduction’ must begin and end at the source itself.

“There are numerous other legal deficiencies with the proposed rule that will certainly be litigated. Given the complexity of this rule and the deadlines for state plans, however, states and regulated entities will be forced to comply with this rule long before courts decide the legal challenges. They are not going to be able to wait to see what happens in court, so under the current timing any victory that they achieve will end up being hollow.”

The third member of a legal panel due to testify at the hearing is Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. His prepared testimony was not available as of March 16. But in comments filed with EPA late last year about the Clean Power Plan, Tribe said: “EPA’s actions serve as a breathtaking example of executive overreach and an assertion of power beyond the agency’s authority. The proposed rule lacks legal basis. It also represents an improper attempt by EPA unilaterally to remake a portion of the American economy on the basis of a hitherto obscure provision of the Clean Air Act, which is a fatally flawed interpretation.”

On a separate panel at the hearing will be state regulators, including Donald R. van der Vaart, Secretary of the North Carolina Department of Environment and Natural Resources. He will suggest: “Given the almost certain litigation that will ensue if the proposed rule under §111(d) is promulgated, states such as North Carolina are at risk of investing unnecessary time and resources if they move forward with developing and enacting state §111(d) plans prior to the resolution of litigation. North Carolina recommends that the EPA amend submittal deadlines contained in the Subpart B regulations – rules that implement §111(d). More specifically, the EPA should require states to submit a §111(d) plan only after the conclusion of due process afforded by the judicial review process. Employing this legal trigger approach would ensure that states, the EPA and regulated sources (which need considerable time to enact such sweeping changes to electricity generation) do not expend their limited resources in an attempt to satisfy yet another EPA rule that ultimately is vacated or remanded.”

Art Graham, chairman of the Florida Public Service Commission, is due to testify that: “The Commission contends that any carbon regulation imposed on electric generators must allow flexible, cost-effective solutions and must not compromise reliability. I recognize the need for and the role of environmental regulations at the state and federal level, and my comments do not take a position on environmental issues. Although the Clean Power Plan affects all aspects of the electric industry in Florida, my comments focus on two main concerns, a lack of fairness in Florida’s requirements and the significant cost of compliance.”

Graham added: “EPA’s proposed methodology, which imposes national assumptions on individual states, results in a 2020 interim target of 794 lbs/Megawatt-hour (MWh) for Florida, with a final target of 740 lbs/MWh by 2030. The final target represents an additional 38 percent reduction in Florida’s CO2 emissions profile relative to EPA’s 2012 baseline year. It is important to note that these required reductions are in addition to the 25 percent reductions Florida achieved over the seven years prior to 2012. To comply, Florida will have to more than double its past efforts within less than five years. I believe this requirement is unreasonable and unfairly penalizes Florida for having taken actions that reduced CO2 emissions prior to EPA’s 2012 baseline year. Further, the proposed interim requirement for Florida is only marginally different from the final requirement, and requires a substantial proportion of the 2030 CO2 emissions reductions to occur beginning in 2020.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.