Does EPA's §111(d) Proposal Rely on an Unprecedented and Legally Forbidden Approach to Emission Reduction?

Date01 April 2015
Does EPA’s §111(d) Proposal
Rely on an Unprecedented and
Legally Forbidden Approach
to Emission Reduction?
by William F. Pedersen
William F. Pedersen, Senior Counsel with Perkins Coie in Washington, D.C., works in the rm’s
Environment, Energy & Resources practice, where he focuses on Clean Air Act issues.
I. Introduction
In June 2014, the U.S. Environmental Protection Agency
(EPA) proposed standards under §111(d) of the Clean A ir
Act (CAA)1 for state plans to reduce c arbon dioxide emis-
sions from existing fossil fuel-red electric generating units
(EGUs).2 ese standards do not require states to use a ny
particular means of emission reduction. However, their
stringency depends in par t on EPA’s conclusion that states
could reduce these emissions not only by measures that
directly reduce fossil fuel EGU emissions, but also by ma k-
ing the grid less dependent on fossil fuel through increased
energy eciency and increa sed reliance on nuclear and
renewable generation.
Some claim that this approach abandons a basic princi-
ple of C AA regulation without statutory warrant.3ey say
that the CAA ha s always relied on controls on the individ-
ual emitting source within t he power of the source owner
to install, thus preserving owner autonomy and limiting
EPA’s power. According to critics, EPA has now burst those
bounds and made itself the planner of the energy market
by claiming the power to d ictate not a level of emissions,
but rather how energy needs will be met. In resting such
a proposal on summary and generic statutory provisions,
critics argue, EPA has violated the principle that when
the U.S. Congress delegates extensive powers, it does so
expressly: It does not “hide elephants in mouseholes.4
is Comment argues the contrary—that, in fact, EPA’s
proposal rests on explicit statutory authority. e rule could
and probably would be implemented by long-established
1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
2. 79 Fed. Reg. 34830 (proposed June 18, 2014).
3. For the arguments against EPA’s proposal, see generally Eric Groten, Here
Be Dragons: Legal reats to EPA’s Proposed Existing Source Performance Stan-
dards for Electric Generating Units, 45 ELR 10116 (Feb. 2015).
4. Whitman v. American Trucking Ass’n, 531 U.S. 457, 468, 31 ELR 20512
regulatory mechanisms that the U.S. Supreme Court
has upheld. Moreover, EPA’s approach is neither unprec-
edented nor unlimited. Since 1970, the CAA has called on
states to make policy choices and use their governmental
powers in the manner that this rule might require. Indeed,
many of the policy choices needed to comply with EPA’s
proposal would stem from the special characteristics of the
electricity market and not from any new EPA initiative.
Finally, the structure of the CAA sets limits in general and
in particula r on how far EPA could push this precedent. I
will discuss each point in turn.
II. Direct Legal Support for EPA’s
A. EPA’s Proposal Rests on Express Statutory
Many CAA provisions—such as those for controlling emis-
sions from new stationary source s of air pollution, or con-
trolling emissions of ha zardous air pollutants, or reducing
emissions from motor vehicles—assume, as their language
indicates, that installing new controls on the individual
source will be the primary method of reduction.5
But §111(d) invokes a dierent statutory mechanism.
Under §109, the CAA requires EPA to set national ambient
air quality standards (NAAQS) to specify acceptable air
5. See CAA §§111(a), 112, 202. While many of EPA’s programs regulating
emissions from motor vehicles establish emissions limits that apply to each
individual vehicle model produced, some of these programs establish emis-
sions limits that apply to a manufacturer’s entire eet of vehicles collectively,
allowing manufacturers to produce some models above the standard and
some models below the standard. For example, EPA determines compliance
with its tailpipe emissions standards for nonmethane organic gasses and ni-
trogen oxides based on the average emissions of all of the vehicle models a
manufacturer sells rather than the emissions from each individual vehicle
model. See 40 C.F.R. pt. 86 (2015).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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