Clean Power Plan Supporters Back EPA's Authority

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By Andrew Childers

April 1 — The Environmental Protection Agency is using its authority under Section 111(d) to regulate carbon dioxide from power plants with its Clean Power Plan exactly as Congress intended, more than 200 current and former legislators and two key Senate aides said in defense of the rule.

Congress deliberately conferred broad authority on the EPA in the Clean Air Act to ensure it had the flexibility to address unanticipated environmental concerns, the members of Congress said in an amicus brief filed April 1 in the U.S. Court of Appeals for the District of Columbia Circuit.

“Indeed, Congress conferred particularly broad authority on EPA with respect to the gap-filling provision, because it understood that EPA would need flexibility in implementing a provision designed to address such a diverse array of pollutants and sources, both known and unknown,” the members of Congress said.

The brief was signed by all members of House and Senate Democratic leadership as well as Sen. Bernie Sanders (I-Vt.), a presidential candidate. Former Sen. David Durenberger (Minn.) and former Rep. Sherwood Boehlert (N.Y.) were the only Republicans to joint the brief.

No Intent to Limit Authority Seen

Leon G. Billings and Thomas C. Jorling, former aides to the then-Senate Committee on Public Works who helped draft the 1970 amendments to the Clean Air Act, also argued in an amicus brief that Congress had intended the EPA use Section 111(d) to regulate pollutants—such as carbon dioxide—that are neither criteria pollutants subject to air quality standards nor toxics regulated under Section 112 of the act.

“There was no suggestion in these provisions of any intention to limit the agency's exercise of authority to act against harmful air pollutants; rather, it was clear that Congress meant to create a three-pronged regulatory regime with Section 111(d) as an essential component,” they said.

The former aides and legislators' arguments echo similar points made in an earlier brief by former EPA administrators William D. Ruckelshaus and William K. Reilly, both of whom served under Republican presidents, that Congress intended for the Clean Air Act to be a flexible tool for the agency to respond to unforeseen environmental concerns .

The EPA's Clean Power Plan (RIN 2060-AR33), issued under Section 111(d) of the Clean Air Act, sets carbon dioxide emissions limits on the power sector in each state that will be achieved through heat rate improvements at individual power plants, expanded use of natural gas generating capacity or investments in new renewable energy projects.

The rule is being challenged by 27 states as well as several utilities and industry groups. They argue the EPA has exceeded its Clean Air Act authority and that the Clean Power Plan actually regulates how electricity is generated rather than how much pollution is emitted.

Rule Said to Follow Intent of Congress

However, lawmakers supporting the rule said the EPA's use of Section 111(d) follows the intent of Congress.

“By enacting a gap-filling provision that would give EPA flexibility to address new pollution problems, Congress ensured that the federal government would be able to respond to new and diverse challenges not anticipated at the time the law was enacted, and that EPA could tailor regulations to the specific nature of the pollutant and source,” they said.

Though 200 current and former members of Congress, primarily Democrats, have filed in support of the Clean Power Plan, another 200 members of Congress, primarily Republicans, previously argued that the rule oversteps the EPA's Clean Air Act authority.

Some opponents of the Clean Power Plan have argued that the EPA is barred from regulating carbon dioxide from power plants under Section 111(d) because those units are already regulated under Section 112, citing conflicting amendments to Section 111(d) signed into law when the Clean Air Act was last amended in 1990.

However, former Senate aides Billings and Jorling said that interpretation goes against Congress's explicit intent for Section 111(d) to serve as a backstop to regulate pollutants that are neither criteria pollutants nor air toxics.

“If the Section 111(d) exclusion relating to Section 112 is applied source-wide, as petitioners contend, a source subject to reduction requirements for [hazardous air pollutants] could emit, without any limitation, any non-[hazardous air pollutant] and non-Criteria air pollutant. This interpretation would shield these sources from regulation under Section 111(d), creating precisely the gap that Section 111(d) was intended to fill.”

Clean Power Plan Represents ‘Best System.'

Section 111(d) requires the EPA to determine the “best system of emission reduction,” but opponents of the rule argue that the agency is limited to only those steps that can be taken at the regulated utilities themselves. Instead, the Clean Power Plan pursues emissions reductions by shifting generation from coal-fired utilities to less polluting natural gas or renewable generation.

The EPA in its own brief had defended generation shifting as an acceptable method of emissions reduction .

The National League of Cities and U.S. Conference of Mayors also defended the EPA's interpretation, arguing that generation shifting would provide the greatest emissions reductions at the lowest cost, particularly compared with more expensive heat rate improvements at individual power plants.

“Interpreting the ‘best system of emission reduction' in the manner proposed by petitioners would limit EPA’s options to heat-rate improvements and technological fixes that are more costly and less effective, essentially erasing the word ‘best' from the statute,” they said.

Businesses Make Case for Rule

Business groups also came to the Clean Power Plan's defense, arguing the rule is key to driving the U.S. toward more renewable electricity generation.

Amazon.com Inc., Apple Inc., Google Inc. and Microsoft Corp., which collectively in 2015 used more 10 million megawatt-hours of electricity, argued that investors are increasingly pushing companies to address climate change and sustainability as part of their business plans. The EPA's Clean Power Plan will help foster the growth of new renewable generation.

“To the extent the Clean Power Plan expands renewable energy sources and use, it does so within a national framework that provides flexibility to the states to ensure that existing fossil fuel-based generation and renewable energy facilities are used in an integrated manner, and at levels that allow businesses to realize the many benefits of renewable electricity,” the companies said.

Dominion Resources Inc., which owns several coal- and natural gas-fired power plants, also said the Clean Power Plan's targets are achievable provided the rule's flexibility is retained and market-based approaches are allowed.

“From Dominion's perspective, the rule is compatible with current trends toward additional renewable and natural gas generation in the power sector based on market conditions and customer demands, as well as already-finalized state and federal environmental requirements aimed at pollutants that have long been subject to federal regulation under the Clean Air Act,” the company said.

Sustainable business groups including the American Sustainable Business Council, U.S. Black Chambers Inc., and Green America also praised the flexibility the rule gives to states to craft the lowest cost compliance options.

“The plan is the opposite of centralization,” they said. “It employs a cooperative federalism approach that preserves the states’ traditional control over energy policy. It allows states to achieve the national goals of reducing CO2 emissions by directing and implementing their own plans in ways that stimulate economic growth and create jobs for their citizens.”

The D.C. Circuit has scheduled oral arguments in the Clean Power Plan litigation for June 2 and possibly June 3 before Judges Judith Rogers, Karen LeCraft Henderson and Sri Srinivasan. However, the U.S. Supreme Court already has stayed the rule's implementation until litigation is complete (West Virginia v. EPA, U.S., No. 15A773, 2/9/16).

Petitioners' reply briefs are due April 15.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

What EPA Supports are Saying in Friend of the Court Briefs

200 former and current members of Congress: “It was of critical importance to the Congress that enacted the [Clean Air Act] that the law be forward-looking, capable of addressing not only those pollutants that Congress specifically contemplated, but new ones that might arise in the future.”

Former Senate aides responsible for drafting the 1970 Clean Air Act amendments: “EPA’s promulgation of the rule under section 111(d) of the act fits squarely within the authority Congress delegated to the agency.”

National League of Cities and U.S. Conference of Mayors: “Because cities’ legal authority generally extends only as far as their state governments allow, cities’ efforts to adapt to a changing climate and to mitigate its causes are highly sensitive to national policies like the Clean Power Plan, which shape national markets, steer state action, and have large direct impacts on nationwide emissions.”

Public health groups: “The Clean Power Plan, which will result in direct reductions of both carbon emissions and conventional air pollutants, is a legitimate fulfillment of EPA’s statutory obligations.”

Grid experts: “The rule’s design is eminently sensible: it reflects the regional nature of the power system, facilitates familiar compliance approaches such as emissions trading, and gradually accelerates industry trends already underway, as aging coal-fired units are replaced with cheaper, cleaner natural gas and renewable energy generation.”

Amazon.com Inc., Apple Inc., Google Inc. and Microsoft Corp.: “The plan promises to promote greater use of increasingly affordable, stable sources of renewable energy that appeal to investors and customers alike.”

Adobe Inc., Mars Inc., Ikea North America Services LLC and Blue Cross and Blue Shield of Massachusetts Inc. “As a result, companies are beginning to bear economic and social disruptions from carbon source uncertainty that could be alleviated by the court in upholding the Clean Power Plan.”

Sustainable business groups: “A trove of research and actual experience shows that, with the motivating force of the plan, state implementation can generate economic benefits far exceeding the EPA’s expectations for jobs, consumers, local economies, and the economy as a whole.”