EPA’s Clean Power Plan, the agency’s proposed rule to reduce carbon dioxide (CO2) emissions from existing power plants, is the centerpiece of President Obama’s climate policy agenda. On the day the Plan was published in the Federal Register (June 18, 2014), Murray Coal petitioned the D.C. Circuit Court of Appeals to bar EPA from further work on the rulemaking. Eight days later, nine states led by West Virginia filed an amicus brief in support of that petition.
Ever since Massachusetts v. EPA (April 2007), when the Supreme Court set the stage for EPA’s transformation into a Super Legislature dictating national policy on climate change, litigation to rein in the agency has generated more billable hours for lawyers than regulatory relief for their clients.
Consider Utility Air Regulatory Group v. EPA (June 2014), in which petitioners challenged EPA’s application of Clean Air Act (CAA) permitting requirements to stationary emitters of greenhouse gases. The absence of anything resembling congressional intent for EPA’s policy was breathtaking. Out of 692 bills containing the term “greenhouse gas” during 1990-2011, none specifically provided authority to apply CAA permitting requirements to greenhouse gas emitters. The only regulatory climate bill ever to pass a chamber of Congress — H.R. 2454, the Waxman-Markey cap-and-trade bill — explicitly exempted stationary sources from permitting requirements based on their greenhouse gas emissions.
EPA sought to regulate CO2 from facilities accounting for 86% of U.S. stationary-source greenhouse gas emissions. The Court in UARG trimmed back EPA’s reach to facilities accounting for 83% (slip op., p. 10). Seven of the nine Justices were either too deferential to agency expertise, too activist, or too reluctant to acknowledge errors in Mass. v. EPA to re-limit EPA in any serious way.
A bare majority in UARG did, however, vote to overturn EPA’s Tailoring Rule, the agency’s brazen attempt to rewrite unambigous (numerical) statutory requirements to avoid an administrative debacle of its own making. Moreover, the Scalia majority admonished EPA against adopting statutory interpretations that would “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The Court continued:
When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” … we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance” (slip op., p. 19).
Those words are a perfect rebuke to the regulatory coup EPA is trying to pull off via the Clean Power Plan. Will EPA get away with it? I don’t think so, especially after reading Here Be Dragons: Legal Threats to the ESPS Proposal by environmental attorney Eric Groten (Vinson & Elkins). [click to continue…]