EPA’s Clean Power Plan Violates Three Laws, a Doctrine of Statutory Interpretation, and the Constitution

Yesterday, the Wall Street Journal published a letter ($) from EPA General Counsel Avi Garbow, the purpose of which is to defend the legality of the Clean Power Plan—the Obama administration’s marquee climate initiative—from a recent influential op ed ($) to the contrary by Harvard law professor Laurence Tribe. According to Mr. Garbow,

For more than 40 years, the EPA has established an enduring track record of faithfully following the laws enacted by Congress and the dictates of sound science to achieve the twin goals of protecting public health and the environment … The proposed Clean Power Plan follows that same path to create a pragmatic approach to reducing greenhouse gases, in the form of carbon-dioxide emissions, from power plants.

Mr. Garbow is wrong to claim that EPA is “faithfully following the laws.” Below, I’ve enumerated the various laws and standards of statutory interpretation violated by the rule.

• The Clean Power Plan violates the plain terms of the Clean Air Act (as conceded by EPA and NRDC);

• The Clean Power Plan violates EPA’s Clean Air Act implementing regulations and thereby runs afoul of the Administrative Procedures Act;

• The Clean Power Plan violates the boundaries of federal authority as established by the Federal Power Act;

• The Clean Power Plan violates the Supreme Court’s “Congress doesn’t hide elephants in mouse holes” doctrine of statutory interpretation;

• The Clean Power Plan violates the Constitution.*

*Stay tuned—I’m working on a post this week about how federal implementation of the Clean Power Plan (by conditioning the states’ compliance on receipt of highway funds) exceeds Congress’s authority pursuant to the Spending Clause.