EPA’s Clean Power Plan Defies Its Own Regulation

EPA’s greenhouse gas regulation for existing power plants, known as the Clean Power Plan, is off-putting for a number of reasons. For starters, it’s expensive and threatens electric reliability. The regulation, moreover, is an affront to federalism, insofar as it usurps the States long-held, exclusive authority to oversee retail electricity markets. Despite these drawbacks, the rule would in no way impact the climate.

That’s a parade of horribles; however, the most off-putting element of the Clean Power Plan is the nuts and bolts of the EPA’s regulatory reasoning, which, in practice, would give the agency unlimited power.

Allow me to explain. As I indicate above, the Clean Power Plan would fundamentally overhaul the power sector. It is, as such, a big deal. And yet, this hugely consequential policy was based on an “obscure” and infrequently-used provision of the Clean Air Act–§111(d). In order to engender such a big policy from such a small statutory authorization, EPA had to get creative. Whereas, in the past, EPA deployed Clean Air Act §111(d) on a source-by-source basis, EPA aggregated sources subject to the Clean Power Plan. Thus, the rule applies to the entire power sector within a States, rather than one source category (i.e., coal plants, gas plants, etc.) at a time.*

EPA’s unprecedented aggregation of sources subject to the rule is an unsettling precedent, because it suggests EPA’s power is unlimited. If EPA can group together technologies as disparate as a coal-fired boilers, gas turbines, and solar panels, then there’s no logical endpoint to the agency’s authority to aggregate sources. What’s to stop EPA from adding manufacturers? Or livestock farms? Under the precedent established by the Clean Power Plan, EPA can regulat anything and everything pursuant to 111(d), which is, again, a short and obscure provision of the statute.

In light of the fact that aggregation is the sine qua non of the Clean Power Plan, and also the fact that it would establish a powerful precedent, let us review the regulations promulgated by EPA to implement the 111(d) program to see whether the agency provided for such a policy. At the bottom of this blog, I’ve reposted the regulations, which were issued on November 17, 1975; Below, I’ve excerpted the key passages.

• “The regulations have been amended to make clear that the Administrator will specify different emission guidelines for different sizes, types, and classes of designated facilities when costs of control, physical limitations, geographical location, and similar factors make subcategorization appropriate” (40 FR 53341)

• “Finally, as discussed elsewhere in the preamble, EPA’s emission guidelines will reflect subcategorization within source categories where appropriate…Thus, EPA’s emission guidelines will in effect be tailored to what is reasonably achievable by particular classes of existing sources…” 40 FR 53343

Far from envisioning aggregation, EPA’s 111(d) regulations only foresee the possibility of “subcategorization”—that is, the opposite of what the agency is trying to do now. The agency will be hard-pressed to explain this evident conflict with its implementing rule, which is a legislative rule promulgated following notice and comment procedures.

*Indeed, §111(d) has been applied on a source by source basis within a source-category by source-category basis.