On Key Clean Air Act 111(d) Interpretation, NRDC Cynically Reverses Itself

There’s a very interesting legal argument that the Clean Air Act forbids EPA from regulating greenhouse gases from existing power plants, which is the purpose of a major climate change rule proposed by the agency on June 2. In a nutshell, the argument goes like this:

• EPA’s climate regulatory regime for existing sources is authorized by §111(d)
• In 1990 Amendments to the Clean Air Act, Congress barred EPA from issuing §111(d) regulations for any source category that is also subject to §112 standards for hazardous air pollution. This exclusion is found in 111(d)(1)(A)(i)*
• In February 2012, EPA promulgated §112 standards for power plants (the ridiculous Utility MACT).
• Therefore, EPA is prohibited from subjecting power plants to §111(d) regulations.

Environmental special interests, on the other hand, currently claim that this line of reasoning has no merit. To this end, they point to the existence of a drafting error rendered during the Conference Committee to reconcile the House and Senate versions of the 1990 Clean Air Act Amendments. According to leading environmental lawyers, there are, in fact, two versions of §111(d)(1)(A)(i) as it pertains to the §112 exclusion, and, as a result, the text is ambiguous. Statutory ambiguity, in turn, is a classic trigger for judicial deference to agency interpretation.

Consider, for example, David Doniger, Policy Director and Senior Attorney, Natural Resources Defense Council Climate and Clean Air Program. Here’s what he said about the matter at a May 23 Federalist Society event (video above):

[At the 59:20 mark] When you look at this statute, it turns out that Congress really kind of screwed up in 1990. They adopted two provisions in two different sections of the 1990 Clean Air Act Amendments that both modified the same sentence of §111(d), and the codifiers didn’t know what to do. So they tried, and picked one version of it, and put it in the US code. But it turns out that what is really the law of the land, is the Statute at Large. So you have to reconcile these two inconsistent amendments adopted at the same time to a single sentence of the CAA. If there ever was a place when the Chevron doctrine applies, it’s gotta be that, where the statute is literally a mutation in the process in dividing and combining between the House and Senate. And the agency is going to end up with the leeway to resolve that. The EPA did produce a resolution to that in the [pause] I believe it was the mercury regulations or maybe it was a recent one. And I think the Supreme Court will spend five minutes on that one.

I’ve added the formatting to highlight Doniger’s correct claim that the EPA has indeed “produce[d] a resolution” to this textual discrepancy. The agency first did so in 2005, as part of its Clean Air Mercury Rule. Briefly, EPA’s 2005 mercury rule would have exempted power plants from §112 hazardous air pollution controls, and instead subjected them to §111(d) controls for mercury. NRDC, for whom Doniger works, opposed the 2005 Clean Air Mercury Rule. And a key component of NRDC’s legal reasoning–at that time, at least–was that the Clean Air Act bars EPA from imposing §111(d) requirements on a source that is already subject to §112 standards. See for yourself: At the bottom of this post, I’ve reposted NRDC’s reply brief in opposition to the 2005 mercury standards. (See Part II, “EPA May Not Adopt §111 Standards for EGU Emissions of Listed HAPS,” p 13, where the environmental plaintiffs state that the Clean Air Act “…prohibits EPA from setting §111 standard for pollutants like mercury “emitted from a source category which is regulated under section 112”…”)

So, the very case Doniger cited to make his point demonstrates that NRDC used to argue the opposite! Talk about shifty! Also, I should note that Brian Potts, in this insightful Forbes article, argues that the different §111(d) texts engendered by the Conference Committee for the 1990 CAAA can, in fact, be read together. Finally, I should note that the idea for this post come from a tweet by Jonathan Adler, who used to work at CEI and who is now a professor at Case Western Reserve University School of Law.

 

Environmental Plaintiffs Reply Brief New Jersey v EPA

*In adding this provision, the Congress  reasoned that §112 standards required ultra-stringent controls for hazardous air pollution from existing stationary sources, and this rendered 111(d) standards superfluous, given the fact that controls for the former regulatory regime would capture pollutants subject to the latter.