EPA climate rules face challenge in Congress and courts
By Rahul Srivastava
Last week, I wrote about EPA’s proposed Clean Power Plan (CPP), and what it entails. This week, the focus is on the challenges that the CPP will face in the coming weeks and months.
Regardless of its merits and demerits, the CPP will bring a sweeping degree of change to the national economy. The EPA is yet to bring the CPP into law, but it already faces multiple court cases in a Federal Court and a bill in Congress introduced in the Senate to repeal the regulations and make it almost impossible to rewrite them
“Our bill would also require that any greenhouse gas standard set by the EPA for new coal-fired power plants are able to be achieved by commercial power plants operating in the real world,” said the bill’s sponsor, Senator Shelley Moore Capito (R-WV).
Apart from this limiting provision, the bill wouldn’t allow EPA rules to be implemented until all court challenges are exhausted, and would also give governors the chance to walk away from the regulations if they feel that their state could face a range of negative effects. Sen. James Inhofe (R-OK), Chairman of the Environment and Public Works Committee, considers the bill “the most significant thing” the committee will probably do all year. If it becomes law, the bill will render the EPA’s CPP obsolete.
Even if the bill passes Congress, however, it faces a certain veto from President Obama. According to CCL Legislative Director Danny Richter, Congress doesn’t have the numbers to override the President’s veto. Like others, he thinks the real challenge for the EPA lies in the courts, where corporations and states are actively fighting to strike down the proposed regulation.
The cases right now in the DC circuit have West Virginia and Murray Energy Corporation as two separate petitioners. They want the EPA’s proposed rules struck down, they argue, not only because the EPA lacks the authority to issue them, but also because they are causing states and companies to restructure their energy systems in anticipation of rules that, according to them, will not stand up to legal challenges. The EPA refutes these claims, saying it has “only published a proposal for notice and comment,” and has “not yet considered and responded to those comments as the Act requires, nor ‘promulgated’ a regulation.” Thus, the EPA argues, “It has taken no action that has binding legal effect or determines any entity’s rights or obligations.”
At a recent hearing in the court, two out of three judges (all Republican appointees), expressed their skepticism regarding shooting down proposed regulation, citing the lack of a legal precedent, and maintaining that the rules could be subject to change. Justice Brett M. Kavanaugh added, “It could take as much time for us to write this opinion as it will for EPA to release the final rule.”
But the court’s position remains unclear on the constitutional merits of the rules, if and when they do come into effect. Even though the rules are not finalized, the EPA and the plaintiffs fighting it in court have also fought the case on the merits of the rules itself.
In its legal brief to the court, Murray Energy Corp. argues that section 111(d) of the Clean Air Act bars EPA from addressing emissions of CO2 and other pollutants because section 112 already regulates hazardous pollutants. Since the EPA already regulated power plants in 2012 under section 112 of the Clean Air Act, the agency would be restricted “from mandating state-by-state emission standards for these same sources,” Murray says.
West Virginia toes a similar line in its brief to the court. Because of the regulations imposed on power plants in 2012, “the Section 112 Exclusion now prohibits EPA from regulating a source category under Section 111(d) if EPA has already regulated that source category under Section 112.”
The EPA, however, argues that deference should be given to the agency in interpreting these rules, citing various legal precedents. The agency maintains that section 111 (d) is ambiguous, and so “it could reasonably be interpreted as authorizing EPA to address non-hazardous emissions from power plants.”
The confusion, ironically, is clear. The plaintiffs argue that the EPA may not regulate a source (e.g. a power plant) after it has already been regulated, while the EPA maintains it can regulate a non-hazardous pollutant such as carbon dioxide. To understand what a future Supreme Court decision could look like, it is important to look at a judgment from the past.
In 2014, in the case Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146., the Supreme Court endorsed the EPA’s efforts to regulate greenhouse gas emissions from power plants with a decisive 7-2 vote. The court allowed the EPA to go ahead with its regulations, as long as the emitters already needed permits for conventional pollutants. That effectively put 83% of greenhouse gas emitters under the EPA’s domain. However, it rejected the EPA’s agency’s rationale for the regulations. Justice Antonin Scalia wrote, “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”
The Clean Air Act allowed the EPA to cover sources that would emit between 100 to 250 tons of a particular pollutant, which was just fine for pollutants like lead and mercury. Including greenhouse gases in this fold, however, would require the EPA to cover millions of sources of pollutants. The EPA’s solution was to raise this threshold to 75,000 tons to 100,000 tons per year, thus covering far fewer sources. The courts, however, rejected that approach, stating the agency did not have the mandate to revise such clear provisions in the CAA.
The ruling was thus a victory for both environmental and industry groups, who stand on opposite sides of the fence on this debate. The effect of the rejection of the agency’s legal basis for the regulation was minimal, as the agency would still be able to control emitters that needed permits for conventional pollutants. Justice Scalia, speaking for seven justices, said, ““We are not talking about extending EPA jurisdiction over millions of previously unregulated entities,” Justice Scalia wrote, “but about moderately increasing the demands EPA (or a state permitting authority) can make of entities already subject to its regulation.”
Comparing the arguments behind the 2014 decision to the current proposed regulations may imply that while the EPA has the mandate to regulate greenhouse gas emissions from power plants, it does not have the luxury to interpret the CAA to its benefit. That effectively leaves the interpretation of the ambiguous sections 111(d) and 112 in the hands of the courts. The battle over EPA’s new regulations will perhaps only begin once they are finalized this summer. The 2014 decision gave cause for optimism, but until the judiciary gives its verdict on the legality of the EPA’s actions, we can only speculate.
Rahul Srivastava is a communications intern with Citizens’ Climate Lobby.