NRDC’s *Laughable* Briefs in Clean Power Plan Cases Perform the Ultimate Flip Flop

There are three ongoing legal challenges to EPA’s proposed Clean Power Plan:

• On June 18, 2014, Murray Energy Corporation, an Ohio-based coal mining company, filed a novel lawsuit in the D.C. Circuit Court of Appeals seeking an all Writs Act injunction that would halt EPA from continuing with the Clean Power Plan. (Case no. 14-1112)
• On August 1, 2014, thirteen States led by West Virginia AG Patrick Morrisey filed a petition in the D.C. Circuit Court of Appeals seeking to overturn a non-judicial settlement agreement by which EPA committed itself to propose and finalize the Clean Power Plan. (Case no. 14-1146]
• On August 15, Murray Energy filed another petition in the D.C. Circuit seeking to overturn the regulation based on the judicial review provisions of the Clean Air Act. (Case no. 14-1151)

In late January, a D.C. Circuit panel established a parallel schedule for all three cases; oral arguments will take place on April 16.

Setting aside their respective jurisdictional hurdles, the challengers essentially share the same case on the merits. If you’ve read this far, then presumably you’re already acquainted with the inside-baseball legalese of these lawsuits; I’ve given the nitty-gritty details here. Very simply put, both the States & Murray Energy argue that the plain text of the Clean Air Act bars EPA from promulgating the Clean Power Plan.

In September, an NRDC lawyer called the lawsuits “laughable.” Nonetheless, NRDC felt it was necessary to intervene in all of them. Last week, NRDC and other environmental interveners submitted two briefs on behalf the EPA (one for the states’ case, and another for both the Murray cases). Notably, the two briefs adopt distinct arguments regarding the plaintiffs’ shared argument on the merits. In this short post, I will address the environmental interveners’ briefs.

[Nota Bene: This post will avoid the weeds; the actual textual arguments, per se, are treated as an abstraction. The purpose of this post is to broadly address NRDC’s method of interpreting the Clean Air Act, which I find to be *laughable*—not least because it flatly contradicts NRDC’s past interpretation of the statutory provision at hand. Today, NRDC claims the provision of the Clean Air Act that allegedly authorizes the Clean Power Plan is ambiguous; During the Bush administration, the green group claimed this provision was unambiguous. This conspicuous contradiction makes NRDC look absurd, which, of course, makes me chuckle.]

It is news to no one that the plain meaning of the enabling statute’s text is an Article III Court’s #1 concern when it reviews the permissibility of an agency action. Accordingly, in Case No. 14-1146 (the one brought by the States), the environmental interveners clearly are operating from a position of weakness, given that their lead argument actually ignores the text of the Clean Air Act, and instead alleges that the plaintiff’s case would violate the “Act’s structure and design.” (pp 4-9). Only with their second argument do the green interveners get around to addressing the actual words in the statute at issue ( pp 9-17). And when they do so, they adopt a “contextual approach” (as defined on pp 10-11)—one that gives inordinate weight to the act’s “structure & design”—rather than a plain reading of its words.

Instead of adopting an avowedly “contextual approach,” the environmental petitioners take the text straight on in their brief in Case Nos. 14-1112 & 14-1151. Whereas both plaintiffs found the disputed language in the statutes-at-large to unambiguously preclude the promulgation of the Clean Power Plan, NRDC et al. argue that the statutory text is ambiguous (p 13). And pursuant to a long-established administrative law doctrine, Article III courts must defer to a federal agency’s reasonable interpretation of an ambiguous provision in its enabling statute.

In both briefs, NRDC’s approach to interpreting the text has changed 180 degree. Back during the Bush administration, EPA proposed a regulation for power plants based on the same provision of the Clean Air Act that authorizes the Clean Power Plan. Because Bush is a republican, NRDC challenged the regulation in court. And, in so doing, NRDC argued that the enabling provision—the same one that it now claims is ambiguous—is unambiguous. That is, they made the opposite argument they’re now making (see pages 20-24 of this brief). Back then, the statute’s plain meaning was unambiguous to the greens; today, they say that the statute necessitates a “contextual reading” because it is ambiguous. The contradiction is glaring.

Here’s the best part of all: Back then, NRDC’s own interpretation of this unambiguous statutory text unambiguously would preclude EPA from promulgating the Clean Power Plan. (See page twenty of this brief; see, also, this post). Talk about your all-time flip-flops!

The cosmic irony is rendered all the sweeter by the fact that NRDC wrote the “blueprint” for the Clean Power Plan.

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Below, find my bare-bones take on the details of the environmental interveners’ brief. Like the above, it’s meant for an inside baseball crowd. Also, I’m writing this coda in a flurry because I’ve got to catch a flight, so please excuse any typos.

In their briefs, the greens try to argue that 111(d) is a some kind of super-important “gap-filling” provision—one that performs a supposedly crucial role in the Clean Air Act by regulating pollutants that fall outside of §§108-110 and §112. And because of its importance, it would be inconceivable that Congress would ever seek to curtail its reach. This is ridiculous. In fact, 111d is an obscure provision that has been used a handful of times in the last forty years, in order to regulate highly localized pollutants.

Moreover, GHGs are the ONLY “pollutant” that could conceivably be further subject to regulation under 111d. In addition to GHGs, the green litigants cite only one other “pollutant”–landfill gases–that would be “immune from regulation” under 111(d) pursuant to the plaintiffs’ interpretation. Even this example is mistaken, for the same reason that the plaintiff’s interpretation wouldn’t impact any elements of the existing 111(d) regulatory regime (In fact, landfill gases already are subject to 111(d) regulations). And that reason is the simple fact that the order in which the regulatory regimes are established is of controlling importance. There’s no conflict with the statute when §111d standards are promulgated for a source category before the promulgation of §112 standards for that category. However, when §112 standards come first, than that source category is excluded from §111(d) regulations.

This makes perfect sense, given the statutory history of the 1990 Clean Air Act Amendments. In 1990, a primary concern of Congress was to beef up the §112 HAP program. Having significantly increased the scope of the §112 program, which establishes an ultra-strict regime for emissions control, the Congress amended the Act to forbid new 111(d) regulations for sources already subject to the newly expanded and burdensome §112. This common sense reasoning reflects that fact that ultra-onerous §112 controls almost assuredly capture the 111d pollutant as a “co-benefit.” The only pollutant for which this isn’t true is GHGs. As a practical matter, the only pollutant that could be caught by this catch-all provision are GHGs. On this score, it is highly relevant that Congress repeatedly has rejected EPA the authority to regulate the climate.

In sum, the greens grossly inflate the importance of 111d, in an effort to preserve the Clean Power Plan. The only existing or proposed regulatory regime that would be affected is the Clean Power Plan.