Did EPA Administrator Gina McCarthy Drop Hints Regarding §111(d) Guidelines on Comedy Central’s Daily Show?

by William Yeatman on April 24, 2014

in Blog

EPA Administrator Gina McCarthy kicked off a jet-fueled, week-long tour to raise alarm about climate change with an appearance Monday on Comedy Central’s Daily Show (video below the break).

Of course, it’s a comedy show, but the host famously skirts the line between real and fake, and near the end of the segment, he asked Administrator McCarthy a very topical question: What would she do to fix the climate, if she had her “druthers.”

Below is her answer:

We’re going to regulate [greenhouse gases] under the Clean Air Act…we’re going to make it [greenhouse gas regulations] flexible, but you’re going to get significant greenhouse gas reductions out of it…We’re not talking about taking any fuel out of the system, we’re talking about making things more efficient, we’re talking about investments in efficiency [and] renewable energy.

Our job is to try to drive those reductions nationally, but to make sure that every state is differently positioned. Some have already done really impressive energy efficiency work. You know what? They could do a lot more.

In her answer, Administrator McCarthy is discussing EPA’s pending Clean Air Act §111(d) guidelines to control greenhouse gases from existing coal-fired power plants. The guidelines are due in June (although there is mounting evidence that the rulemaking is in disarray), and its contents are the subject of heavy speculation. To this end, looking at McCarthy’s quote, I’m struck by how often she stresses “efficiency.”

Is she tipping EPA’s hand, and suggesting that greenhouse gas regulations for existing power plants will entail a heavy emphasis on energy efficiency? In an Advanced Notice of Public Rulemaking performed during the Bush administration, EPA estimated that energy efficiency improvements could engender a 5% decrease in greenhouse gas emissions from the power sector*.

I can’t imagine that the agency would be satisfied with 5% reductions, but we’ll see. Section 111(d) of the Clean Air Act is rarely used, so there’s not much precedent to go on. In a future post, I’ll analyze §111(d) in detail; suffice to say here, the language of the provision seems to indicate that the only permissible regulatory regime is one that is case-by-case. That is, Clean Air Act 111(d) authorizes EPA to issue guidelines to assist states in a plant-specific determination. Under the terms of the statute, state regulators must take into account each power plants unique characteristics (age, fuel type, etc.) before assigning that plant a unique emissions limit. It’s unclear to what extent this source-specific language comports with EPA’s desires for a sweeping regulation. All of this will no doubt be litigated.

There are also those who make a compelling argument that EPA doesn’t have the authority to issue §111(d) standard for power plants, due to a statutory quirk. For more on that, see here.

*I question this analysis. Indeed, I’m suspicious that there are any efficiency improvements to be wrung from industrial suppliers and users of energy, who already have an economic incentive to save energy.





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