Clean Power Plan Opponents Turn Ginsburg's Words on EPA

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By Andrew Childers

March 10 — Opponents of the Clean Power Plan are turning the words of a U.S. Supreme Court justice widely viewed as sympathetic to the Environmental Protection Agency into another weapon to attack the carbon dioxide standards for power plants.

Justice Ruth Bader Ginsburg wrote the Supreme Court's unanimous 2011 opinion finding the EPA's authority to regulate greenhouse gas emissions under the Clean Air Act—including its power under Section 111(d), the basis of the Clean Power Plan—displaced states' ability to bring common law nuisance claims against power plants and other emissions sources (Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2011 BL 161239, 72 ERC 1609 (2011)).

The opinion is being cited by both supporters and opponents in the legal battle over the rule. While it isn't expected to be pivotal to the Clean Power Plan's fate, it has provided opponents of the EPA's rule with a rhetorical cudgel to blast the Clean Power Plan.

“It will be cited strongly by both sides,” James Rubin, a partner at Dorsey & Whitney LLP, who isn't involved in the Clean Power Plan litigation, told Bloomberg BNA. “The EPA has taken a position that that decision establishes clearly its authority to regulate greenhouse gases.”

Oral Argument Set for June 2

The Clean Power Plan (RIN 2060-AR33) is being challenged by 27 states as well as several utility and industry groups. The case is scheduled for oral argument before the U.S. Court of Appeals for the District of Columbia Circuit on June 2 (West Virginia v. EPA, D.C. Cir., No. 15-1363, opposition filed 2/25/16).

Ginsburg is seen as generally supportive of EPA regulations. She was in the majority in the 2007 decision affirming the EPA's authority to regulate greenhouse gases under the Clean Air Act and her opinion in American Electric Power Co. v. Connecticut is viewed as an affirmation of agency authority. She also opposed the Supreme Court's recent decision to stay the EPA's Clean Power Plan.

Opponents Point to Footnote

Although Ginsburg specifically cited the EPA's Section 111(d) authority as one of the factors displacing common law claims in the Supreme Court's decision in American Electric Power Co. v. Connecticut, she also included a footnote that appears to bolster arguments by opponents of the Clean Power Plan.

It says the agency is barred from regulating carbon dioxide emissions from power plants under Section 111(d), because those units already are subject to toxic air pollutant standards under Section 112.

“Footnote 7 obviously is a mystery in how it's going to factor into this litigation,” Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, told Bloomberg BNA. “Does it indicate the court carefully considered the relationship between 111(d) and 112?”

Burger represents cities and mayors who support the EPA in the litigation.

When the Clean Air Act was last amended in 1990, conflicting amendments to Section 111(d) were adopted. The language offered by the Senate would prevent the EPA from regulating the same pollutants under both Sections 111(d) and 112.

However, the House language goes farther, barring the agency from regulating industrial sources under Section 111(d) if they already are subject to toxic pollutant standards under Section 112, as are power plants. Only the House language appears in the U.S. Code, while both provisions are reflected in the statutes at large.

Section 112 Exclusion Principle

Ginsburg's footnote in American Electric Power Co. v. Connecticut appeared to endorse the so-called Section 112 Exclusion principle.

“There is an exception: EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program ... or the ‘hazardous air pollutants' program, [Section 112],” she wrote in the footnote.

Clean Power Plan proponents dispute the footnote has any force, given the issue of Section 111(d) versus Section 112 standards wasn't before the court, and the matter wasn't briefed at the time.

“It's not even a holding in the case. It's not even dicta,” Burger said.

“There's no doubt that the petitioners make note of Footnote 7, but the simple fact is that a footnote from the previous Supreme Court decision does not constitute a holding or the court's decision on the matter, and it doesn't even indicate that the court looked at that issue that closely,” he said.

EPA Endorsed ‘Literal' Reading

States and industries opposed to the Clean Power Plan argue the EPA itself had acknowledged that exclusion in previous rules issued under Section 111(d).

“EPA has repeatedly agreed that this prohibition against regulating under Section 111(d) any existing ‘source category … regulated under section [1]12' means what it says,” they said in a Feb. 19 brief. “In five analyses spanning three different administrations—in 1995, 2004, 2005, 2007, and 2014—the agency consistently concluded that this text means that ‘a standard of performance under [Clean Air Act] Section 111(d) cannot be established for any air pollutant … emitted from a source category regulated under section 112,' repeatedly describing this as the text's ‘literal' meaning.”

Ginsburg's footnote was also the backbone of the argument offered by 200 members of Congress opposed to the carbon dioxide standards (36 DEN A-1, 2/24/16).

Full Court's Considered Reasoning?

Although the footnote would appear to endorse opponents' arguments, it may not represent the full court's considered reasoning, Jeffrey Holmstead, a partner at Bracewell LLP representing the American Coalition of Clean Coal Electricity, told Bloomberg BNA.

“I think it helps my side of the debate, but I don't think it's dispositive,” he said.

The EPA refined its interpretation of the conflicting Section 111(d) amendments when states and utilities challenged the proposed Clean Power Plan. The agency had argued the House language cited by opponents is ambiguous and open to varying interpretations, including a reading that would allow the regulation of carbon dioxide (59 DEN B-1, 3/27/15).

However, the members of Congress said even that interpretation runs afoul of Ginsburg's opinion, once again citing her footnote on the conflict between Section 112 and Section 111(d).

“In addition to contradicting the statute's plain language, EPA's new interpretation of Section 111(d) also differs from the Supreme Court's own explanation of Section 111(d) in AEP,” they said. “There, the court articulated the Section 112 Exclusion in the context of a CO2-specific case without limiting its application to the same pollutants.”

Ginsburg Affirmed EPA's Fundamental Authority

Beyond Ginsburg's footnote on the apparent conflict between Sections 112 and 111(d) of the Clean Air Act, Clean Power Plan proponents said the Supreme Court's decision in American Electric Power Co. v. Connecticut broadly supports the EPA's authority.

“The body of the text said Congress in 111(d) spoke directly to EPA's authority to curb CO2 from existing power plants and because of that there is this displacement of this federal common law,” David Doniger, director of the Natural Resources Defense Council's climate and clean air program, told Bloomberg BNA. “If the footnote took that away, then the whole logic of the displacement would be gone.”

While the Supreme Court's decision specifically cited Section 111(d) as an option for regulating greenhouse gas emissions, it also identified the EPA as the body best equipped to determine how to address climate change, Doniger said.

EPA Designated as ‘Expert.'

“It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions,” Ginsburg wrote. “The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”

Although American Electric Power Co. v. Connecticut may speak to the EPA's fundamental authority to regulate greenhouse gas emissions under the Clean Air Act, Dorsey & Whitney's Rubin said Ginsburg's decision may be less helpful when the court examines how the agency applied Section 111(d) in the Clean Power Plan.

“That doesn't get you to where the Clean Power Plan is,” he said. “Have you used that authority in a way that's lawful?”

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To contact the editor responsible for this story: Larry Pearl at