EPA

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Challenge to the EPA’s Clean Power Plan Regulations

    Obama’s third top domestic priority, EPA’s Clean Power Plan regulations, proposed in preliminary form in June 2014—which attempt to drastically cut carbon pollution from power plants—is also under attack in the courts. Unlike Texas Governor Abbott’s and House Speaker Boehner’s suits, challenges to the final version of these rules, expected imminently, will not be dismissible as hoked up political maneuvers.  Coal and other energy industries, and coal-producing state governments will allege indisputably substantial impacts from the regulations; moreover, specific Clean Air Act provisions authorize parties affected by such rules to seek judicial review.

    But, on the merits of EPA’s CAA authority to adopt the sweeping CPP rules, both conservative and progressive commentators have suggested that King v. Burwell could indeed be the game-changer that Professor Gluck noted, not necessarily to the Obama Administration’s advantage.  In the words of environmentalist Harvard law professor Jodi Freeman, potential new danger for the CPP arises from Chief Justice Roberts’ “striking and significant departure” in ruling that, henceforth, courts must, on their own, interpret ambiguous statutory provisions, in cases where, as noted above, “questions of extraordinary political and economic significance” are at stake – rather than defer to an agency’s “reasonable” or “permissible” reading. 

    EPA rests its claim to promulgate the CPP rules on its resolution of a mind-numbing dispute over an intricate provision of the Clean Air Act, readily susceptible to being labeled, “ambiguous.”  Due to what one prominent environmental law expert has derided as a “glitch” in the 1990 amendments to the Clean Air Act, Congress included two versions of the same CAA subsection (§111(d)); one version pretty clearly provides authority for the CPP rules, while the language of the second, read literally, can be interpreted not to do so.  EPA claims the first version is the correct one.

  • July 1, 2015
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    In its last decision of the 2014 term, the Supreme Court decided Michigan v. EPA, ruling that EPA must consider costs before deciding to regulate toxic air pollutants from power plants.  Lisa Heinzerling has identified the many questions that remain open in the wake of the Court’s decision.  And Dan Farber and Ann Carlson also provide insightful commentary on the meaning of the decision. As all three suggest, the lasting practical effect of the Court’s decision on mercury and other toxic emissions from power plants remains to be seen.

    Without retreading ground that has been well-covered already, I want to offer two observations.  First, I want to offer some (very cautious) optimism that the legal rule provided by the Michigan v. EPA decision has little effect.  Read broadly, the decision could require agencies in many contexts to consider costs before regulating.  I’m not convinced, however, that the decision necessarily tells us anything about when agencies must consider costs. 

    The Court offers several reasons that EPA unreasonably interpreted its authority to regulate power plants without accounting for the billions of dollars of costs such regulation might impose: 

    First, the Court explains that the toxic air pollution provisions of § 112 of the Clean Air Act differentiate between power plants and other stationary sources.  For sources other than power plants, the Act essentially allows EPA to consider, at most, health and environmental effects.  In contrast, the Act requires EPA to regulate power plants only if “necessary and appropriate.”  This contrast, the Court offers, must mean something.

    Second, the Court opines that appropriate regulation generally requires an agency to think about both the benefits of regulation and its cots.  This suggests, that could be read to presumptively require agencies to consider costs in making regulatory decisions. 

  • June 30, 2015

    by Caroline Cox

    At The Atlantic, Conor Friedersdorf discusses recent comments by Judge Nancy Gertner, member of the ACS Board of Directors, on the “unfair and disproportionate” sentences she was forced to impose for drug sentences during her time on the federal bench.

    Josh Gerstein quotes ACS President Caroline Fredrickson in an article at Politico on how the Supreme Court is not, as many suggest, leaning more leftward this term.

    Sahil Kapur provides the eight best lines from the Supreme Court’s ruling in King v. Burwell at Bloomberg Politics.

    At Salon, Mark Sherman reports that the Supreme Court has refused to allow Texas to close ten abortion clinics.

    Rebecca Leber discusses at The New Republic the Supreme Court’s ruling against EPA regulations yesterday and the problems with Justice Scalia’s reasoning in the case.

    At Slate, Richard L. Hasen explains the ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission, arguing that the decision “is a dig at Bush v. Gore.”

  • June 3, 2015
    Guest Post

    by David R. Baake, Ford Foundation Post Graduate Fellow and Associate Advocate, Natural Resources Defense Counsel.

    Last June, the Environmental Protection Agency (EPA) proposed the Clean Power Plan, an initiative to cut carbon pollution from the power sector by 30 percent from 2005 levels. By any metric, the Clean Power Plan is smart policy. The Plan puts the United States on track to cut carbon pollution by 730 million metric tons, an amount equal to the annual emissions of 150 million cars. It is the centerpiece of the United States’ effort to meet its commitments under the historic U.S.-China climate accord, and it will allow the United States to assume a leadership role in the international negotiations for a universal climate agreement set to conclude in Paris this December. It will prevent thousands of premature deaths (by reducing emissions of smog, soot, and other dangerous pollutants), create tens of thousands of new jobs, and save consumers money on their electric bills. All told, the Plan is expected to create tens of billions of dollars in net benefits for the United States.

    Even so, the Plan will engender a fierce, protracted legal battle (as many of President Obama’s other major domestic initiatives have). Industry groups, together with states that are opposed to greenhouse gas regulation, have promised to use every legal device at their disposal to “gum up the works” for EPA, and judging by the five challenges they have already filed to EPA’s proposed rules, this is a promise they intend to keep.

    EPA’s opponents have developed a host of colorful legal arguments as to why the Clean Power Plan must be rejected in its entirety. But most observers expect the fate of the Plan to turn on a single issue: whether EPA may establish emission goals based on measures such as renewable energy and demand-side energy conservation that are implemented “beyond the fenceline” of regulated power plants. I take up this issue in a forthcoming comment in the Environmental Law Reporter.

  • April 30, 2015
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter.

    With Michigan v. EPA, the Supreme Court continues its tradition of reviewing the Environmental Protection Agency’s efforts to regulate under the Clean Air Act. Last year, the Court considered, and partially invalidated, a rule regulating greenhouse gas emissions. This year, the Court considers a rule EPA issued to reduce mercury and other hazardous air pollutants from power plants ― which we have long recognized release significant amounts of heavy metals and other toxins into the air.

    In 1990, Congress gave EPA the task of studying hazardous emissions from power plants and deciding whether to regulate those emissions to protect public health. Twenty-five years later, EPA finally decided to take up this task. A coalition of states and industry groups challenged EPA’s regulation.

    The Supreme Court heard oral argument in the case brought by that coalition on March 25, 2015, and it will likely release a decision within about a month.  Several commenters, like Lyle Denniston at SCOTUSblog and Catherine O’Neill at CPRBlog, have suggested that the outcome is difficult to predict, although a slight majority of participants in “Fantasy SCOTUS,” a platform that allows individuals to predict the outcomes of Supreme Court cases, believe that EPA will win.

    After reading the transcript of the argument, I am left feeling pessimistic for EPA. While the outcome of the case is far from clear, my sense is that the power industry may continue to evade regulation for a while longer.