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Grasping at Straws: A flimsy argument to attack upcoming EPA regulation of greenhouse gas emissions from existing power plants

November 4, 2014

Recently, a number of industry lawyers have been grasping at straws in an attempt to tell EPA it can’t regulate the most significant source of U.S. domestic greenhouse gases — emissions from existing coal-fired power plants – under the Clean Air Act.  Even last week, Sidley Austin attorney Roger Martella’s pre-filed testimony for a House Joint Environment and Energy Subcommittee hearing trotted out the argument, which asserts that EPA can’t regulate existing power plant sources of greenhouse gases –representing some 40% of U.S. manmade carbon dioxide pollution — because power plants are required under the Act to control their air toxics.  This is not only a silly argument, from a policy perspective, but, it’s wrong. It would appear that none of the attorneys repeating it, even including former White House Counsel C. Boyden Gray, have done their homework.

When you do the reading, you learn that this argument is unfounded.  I’ve recently posted an essay response to the same argument made by another attorney, Brian Potts, in the Yale Journal of Regulation Online, which can be read in its entirety at: http://jreg.commons.yale.edu/essay-responding-to-brian-h-potts/.

In brief the correct answer is: since 1970, EPA has regulated “gap” pollutants under section 111(d) of the Clean Air Act – that is, those pollutants that are neither NAAQS nor Hazardous Air Pollutants (“HAPS”) – so, greenhouse gases, for example.  This makes good policy sense, because it avoids duplicative regulation: existing sources of NAAQS pollutants are regulated under State implementation plans, and existing sources of air toxics are regulated under the toxics rules found in section 112.  And EPA’s approach is correct as a matter of the law: it’s what EPA’s 111(d) regulations have said since the 1970s, reflecting how the statute was originally written, and still must be interpreted if read correctly.

Then, in 1990, Congress made significant changes to the air toxics provisions, switching from a system in which EPA “listed” the pollutants and then regulated them, to a system in which Congress listed the HAPs; and then EPA listed the industries and regulated them.

As part of the last minute clean-up to other sections of the Act, including section 111(d), reflecting those changes to the air toxics provisions, both the Senate and the House fiddled with the 111(d) language related to the gap pollutants, to try to track the changes they’d made to section 112.  Unfortunately, they messed up this bit of housekeeping — the House version that was done first is a muddle.  It appears in the codified statute.  The Senate then cleaned up the House muddle, with a later housecleaning change that more clearly reaffirms the longstanding “this is about gap pollutants” policy.  Both the House and Senate versions appear in the Statutes at Large, which are controlling evidence of the laws of the United States.  But, the “last-in-time “ rule i.e., the last version to be enacted controls! That means the Senate version, which clearly confirms that 111(d) applies to existing sources of gap pollutants, is the law.  This is a perfect example of why Congress does not make sweeping policy changes by housekeeping amendments. The industry lawyers making the argument that EPA cannot regulate greenhouse gases should know better.  And, now you (and they) do.

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