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Sept. 26 — A third former Environmental Protection Agency administrator for a Republican president endorsed the Obama administration’s carbon dioxide limits for power plants on the eve of arguments before a federal appellate court.
“It’s also important to understand that the Clean Power Plan is not a rigid, one-size-fits-all regulation that ignores local conditions or concerns. It offers states extraordinary flexibility in how they comply with their obligations—as much flexibility as I have ever seen EPA allow,” Christine Todd Whitman, former administrator under President George W. Bush, said in a Sept. 26 column for Time magazine. “I believe EPA has gone as far as it possibly could have under the law in providing states with fair and flexible options for reducing carbon pollution.”
The Clean Power Plan (RIN:2060-AR33) sets a limit on carbon dioxide emissions from the power sector in each state, which state regulators must implement. Ten judges on the U.S. Court of Appeals for the District of Columbia Circuit are scheduled to hear more than three hours of argument on the rule Sept. 27. The Clean Power Plan is being challenged by more than two dozen states and several utilities and industry groups ( West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 9/22/16 ).
“First, the EPA’s authority to move forward with regulating carbon pollution under the Clean Air Act is not a matter of debate,” Whitman said. “EPA has this authority, and it is in fact obligated to move forward. The law says so and the Supreme Court has said so, twice.
Whitman joins former EPA Administrators William D. Ruckelshaus and William K. Reilly, both Republican appointees, in publicly supporting the rule. The Clean Power Plan falls well within the EPA’s Clean Air Act authority because Congress deliberately made the law’s provisions broad so that the agency could respond to emerging threats, Ruckelshaus and Reilly said in an amicus brief filed in support of the rule.
“That model—federally set national standards coupled with state planning and implementation—is the bedrock of the legal structure that is now in place to protect public health. The Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act and Superfund all operate under that framework,” Ruckelshaus and Reilly said in a Sept. 25 op-ed in the New York Times.
Ahead of the Sept. 28 argument, Attorneys General Ken Paxton (R-Texas) and Patrick Morrisey (R-W.Va.) reiterated their contention that the rule far exceeds the EPA’s statutory authority and impinges on states’ authority to regulate the power sector.
“I can’t think of a more important case that is working its way through the federal court system now than the litigation against the Clean Power Plan,” Morrisey said at a Sept. 26 event sponsored by the Texas Public Policy Foundation, which filed an amicus brief in support of the litigation.
Both Morrisey and Paxton said the rule violates the 10th Amendment by forcing state regulators to implement federal policy. They also reiterated their belief that the EPA lacks the statutory authority to regulate carbon dioxide from power plants under Section 111(d) of the Clean Air Act because those units are already subject to hazardous air pollutant standards under Section 112 of the act.
When the Clean Air Act was amended in 1990, conflicting amendments to Section 111(d) were both signed into law. The Senate language bars the EPA from regulating the same pollutants under both Sections 111(d) and 112 while the House language prevents the EPA from regulating industrial source categories such as power plants under Section 111(d) if they are already subject to toxic pollutant limits under Section 112.
The so-called Section 112 exclusion has been a key argument against the Clean Power Plan, and the D.C. Circuit has allotted 44 minutes of the arguments for that issue alone.
“This is a power grab of epic proportions,” Morrisey said. “We have never seen anything quite like this in our country’s history.”
To contact the reporter on this story: Andrew Childers at AChilders@bna.com
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