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As originally enacted in 1970, §111(d) included an exclusion that prohibited EPA from prescribing §111(d) regulations for any hazardous air pollutant already regulated under §112 of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! [click to continue…]