Opponents of EPA’s Clean Power Plan have made a powerful legal argument that the agency lacks authority to issue the rule. It turns out that EPA used to make the same case. Talk about your all time flip flops!
Read the section immediately below for the background; it’s been formatted in a long block quote in order to isolate what is a complex line of reasoning:
The Clean Air Act establishes two regulatory regimes for industrial categories of existing sources of air pollution: §111(d), for “designated pollutants” and §112 for “hazardous air pollutants.” “Designated pollutants” are defined as any harmful pollutant that isn’t a “criteria” pollutant (i.e., subject to nation-wide National Ambient Air Quality Standards regulations under §§108-110) nor a hazardous air pollutant.
As originally enacted in 1970, §111(d) included an exclusion that prohibited EPA from prescribing §111(d) regulations for any hazardous air pollutant already regulated under §112 of the Clean Air Act. The idea behind this “§112 Exclusion” was to avoid duplicative regulation.
In 1990, Congress amended the Clean Air Act. If you’ll recall the ‘how a bill becomes a law’ jingle, the House and Senate each pass a version of the bill. Often, the texts of these bills are different. Any differences between the House and Senate versions are then reconciled in a Conference Committee.
The House of Representatives passed a bill that fundamentally changed the nature of the §112 exclusion. Before the 1990 Clean Air Act Amendments, the exclusion from 111(d) applied to hazardous air pollutants regulated under §112; under the House bill, this exclusion applied to §112 source categories (rather than §112 pollutants).
Unlike the House bill, the Senate bill left unchanged the pre-1990 §112 Exclusion. That is, the Senate version maintained a prohibition on EPA’s issuance of 111(d) regulations for §112 hazardous air pollutants. However, in order to harmonize the pre-1990 §112 Exclusion with the language of the 1990 Clean Air Act Amendments, the Senate passed a “conforming” amendment to 111(d). Thus, the Senate’s amendment was a ministerial change meant to keep continuity with the existing §112 Exclusion (dating from 1970).
Ultimately, the Conference Committee adopted the House’s substantive amendment rather than the Senate’s version. Logically, the adoption of the House language rendered moot the Senate clerical language. However, the Conference Committee failed to remove the Senate’s conforming amendment. As a result, the Statutes at Large contain both the House’s substantive amendment and the Senate’s conforming amendment.
For obvious reasons, proponents and opponents of the Clean Power Plan disagree on whether the House or Senate amendment is controlling.
Opponents of the Clean Power Plan want to give effect to the House amendment because it would outlaw EPA’s Clean Power Plan. This is due to the fact that the agency, in February, 2012, published a regulation (the ridiculous Utility MACT) that subjects power plants to §112 requirements. Therefore, pursuant to the House version of the 1990 Clean Air Amendments, power plants are a “source category” excluded from §111(d) regulations.
EPA, on the other hand, wants to give effect to the Senate version, because this would allow the agency to regulate power plants under §111(d).
In a previous post, I summarized a persuasive analysis that originated in the office of West Virginia Attorney General Patrick Morrisey, which argues that the Senate amendment is, in fact, a drafting error (also known as a “scrivener’s error”) of a common sort that has never been accorded interpretative force by reviewing courts. The House amendment, by contrast, is a substantive amendment, and therefore controls. And if the House amendment controls, then the Clean Power Plan is an impermissible exercise.
All of this brings me to the point of this post: namely, that EPA previously made the same argument that the West Virginia AG’s office is now making!In crack comments to the Clean Power Plan, the Edison Electric Institute made note of a 1994 technical support document to a rulemaking for 111(d) standards for municipal solid waste landfills, (EPA, Air Emissions from Municipal Solid Waste Landfills – Background Information for Final Standards and Guidelines, Pub. No. EPA-453/R-94-021, at 1-5 (1994)), in which the agency plainly asserts that the House amendment is “correct” (see pages 298-300 of EEI’s comments) Below, I’ve reposted the pertinent excerpt from the 1994 document (formatting added), and, at the bottom of this blog, I’ve reposted the document itself.
Section 111(d)(1)(A) was twice amended by the 1990 Clean Air Act Amendments. Pub. L. 101-549, section 302(a), directed the substitution of “7412(b)” for “7412(b)(1)(A),” and Pub. L. 101-549, section 108(g), substituted “or emitted from a source category which is regulated under section 7412 of this title” for “or 7412(b)(1)(A).” Title 42 of the U.S. Code adopts the amendment of section 108(g) with the explanation that section 302(a) could not be executed because of the prior amendment by section 108(g). 42 U.S.C. section 7411 (Supp.IV 1993). The EPA also believes that section 108(g) is the correct amendment because the Clean Air Act Amendments revised section 112 to include regulation of source categories in addition to regulation of listed hazardous air pollutants, and section 108(g) thus conforms to other amendments of section 112. The section not adopted by title 42, 302(a), on the other hand, is a simple substitution of one subsection citation for another, without consideration of other amendments of the section in which it resides, section 112. Thus EPA agrees that CAA section 111(d)(1)(A) should read “[t]he Administrator shall prescribe regulations which . . . establish standards of performance for any existing source for any air pollutant . . . which is not . . . emitted from a source category which is regulated under section 112.
I’ll conclude by noting that EPA isn’t alone in making a huge flip flop on whether the agency is authorized to promulgate the Clean Power Plan. As I explain here, NRDC—which wrote the “blueprint” for the Clean Power Plan—also used to argue that the agency is precluded from issuing 111(d) standards for power plants, because it already subjected those sources to regulation under §112. As such, both the author and publisher of the Clean Power Plan used to argue, in effect, that the rule is illegal.