Two weeks ago, the Environmental Protection Agency (EPA) released its proposed repeal of the rules governing greenhouse gas emissions from fossil fuel-fired power plants. Included within the proposal is a new legal interpretation of the standard for regulating stationary sources under Section 111 of the Clean Air Act. This new interpretation could constrain the Agency’s authority to address air pollution going forward and potentially disrupt existing rules outside the greenhouse gas context.
Under Section 111, the Administrator may regulate a category of existing sources “if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” This determination – colloquially referred to as the significant contribution finding – is the first step the Agency must take before it can set pollution-control standards for stationary sources.
In its proposal, EPA relies on the statutory term “judgment” to assert that the EPA Administrator has broad discretion to consider a wide range of policy considerations in evaluating whether a group of sources significantly contributes to harmful air pollution. EPA explains that relevant policy considerations include, among other things, the Administration’s goal of increasing fossil fuel-fired energy production. EPA also proposes that it can properly consider the availability of emissions controls as part of the initial analysis of whether a source category significantly contributes to harmful air pollution. Based on this analysis, EPA then proposes that fossil fuel-fired power plants do not significantly contribute to greenhouse gas pollution. It reasons in part that regulating emissions from power plants would have little effect on global greenhouse gas pollution.
EPA does not rest the proposal to repeal greenhouse gas standards for power plants on this statutory analysis alone. In addition, the Agency proposes an alternative ground for the proposal and states that the repeal of these greenhouse gas standards is appropriate for other technical reasons, including that emissions control technologies are not widely available and cost effective.
It is worth watching this proposal. If EPA finalizes its new legal interpretation of Clean Air Act Section 111, it could also affect other rules under Section 111 for power plants and for different categories of sources. It may also affect regulations under other environmental statutes.
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