Claims that the Environmental Protection Agency’s Clean Power Plan is unprecedented are wildly exaggerated, according to legal experts with the New York University School of Law Institute for Policy Integrity.
“There is ample precedent under the [Clean Air Act] both for the issuance of regulations that rely on beyond-the-fenceline pollution reduction techniques, such as emission trading, and for the issuance of regulations that influence the type of fuel used in the production of electricity,” according to a report issued Monday by Richard Revesz, director of the Institute, and Denise Grab and Jack Lienke, senior attorneys for the organization.
The report, published in the Environmental Law Reporter, breaks down precedent-based arguments against the rule. For example, opponents of the rule, which requires states to develop action plans to meet EPA-set carbon emissions reduction goals, argue that inclusion of beyond-the-fenceline measures, as opposed to simply technological or operational requirements enforced at individual sources, exceeds the authority provided to EPA by Section 111 of the Clean Air Act.
The use of such measures has been applied to other rulemakings, the authors argue. “Under the George W. Bush Administration in 2005, EPA issued the Clean Air Mercury Rule (CAMR), which set statewide targets for mercury emissions from power plants and allowed for intersource and interstate trading of emission allowances,” the paper says. The authors also note beyond-the-fenceline measures in the EPA’s Emission Guidelines for Large Municipal Waste Combustors, Emission Guidelines for Medical Waste Incinerators, trading included in the Good Neighbor Provision, the Regional Haze Trading Program, and trading and averaging under mobile source provisions.
The Clean Power Plan was finalized last fall and has become the target of an immense legal challenge including more than 150 petitioners comprised of states, utilities, fossil fuel companies, and trade and interest groups. Oral arguments in the case are scheduled for early June in the U.S. Court of Appeals for the D.C. Circuit though the rule is currently under a stay granted by the Supreme Court and will not go into effect until the high court has either ruled in the Obama administration’s favor or declined to hear the case.
