EPA's Novel Interpretation of 'Best System of Emission Reduction' for Existing Electric Generating Units Violates the Clean Air Act

• Date: 01 December 2014

44 ELR 11064 ENVIRONMENTAL LAW REPORTER 12-2014

EPA’s Novel

Interpretation of

“Best System of

Emission

Reduction” for

Existing Electric

Generating Units

Violates the

Clean Air Act

by Allison D. Wood and

Andrew D. Knudsen

Allison Wood is a partner and Andrew Knudsen is an associate

in the Washington, D.C., oce of Hunton & Williams LLP.



When designating the “best system of emission reduc-

tion” in its Clean Power Plan, EPA considered several

factors far beyond the fencelines and control of the

regulated power plants. e clear statutory language,

context, and regulatory background demonstrate that

such a “beyond-the-source” approach is not allowed

under §111. To nd otherwise would suggest that

EPA can require drivers to stay home or to use pub-

lic transportation in order to reduce motor vehicles’

tailpipe emissions under the Clean Air Act. Although

this conclusion may result in lower overall emission

reductions, it is the outcome that the CAA requires.

I. Introduction

Imagine that the U.S. Environmental Protection Agency

(EPA) proposes regulations under a section of the Clean Air

Act (CA A)1 authorizing the Agency to develop standa rds

of performance for tailpipe emissions from motor vehicles

that burn fossil fuels. One might expect that these regula-

tions would require vehicles to be equipped w ith emission

control equipment (such as catalytic converters) or opera-

tional features (such as on-board diagnostic computers) to

limit each vehicle’s ta ilpipe emissions per mile. But what

if EPA went farther? Imagine that these regulations also

attempted to reduce vehicle tailpipe emissions by requiring

car owners to shift more of their travel to buses, or by pro-

viding subsidies to promote the sale of electric vehicles, or

by encouraging individuals to reduce vehicle use altogether

by working from home once per week. Can a “standard of

performance” reasonably include measures like these?

To many, such broad requirements would seem entirely

out of place. at is because although t hese types of mea-

sures might indirectly reduce tailpipe emissions from vehi-

cles, they have no eect on the emissions performance of

the individual vehicles on which this hypothetical provi-

sion focuses, and they are beyond the control of the vehicle

manufacturer altogether. In order to require such measures,

EPA would need authority to reach “beyond the source” to

impose obligations on other entities.

at’s not what a “standard of performance” program

is about. Yet, this is exactly what EPA is proposing to do

in its proposed emission guidelines2 for existing electric

generating units (EGUs). EPA’s broad “beyond-the-source”

approach is incompatible with the statute. Like the hypo-

thetical motor vehicle provision above, CAA §111 authorizes

EPA and states to promulgate standards of performance for

new and existing sources within certain source categories.

At its heart, this regulatory program is quite simple. It pro-

vides for the regulation of sources through standards that

are based on what an individual source c an do to reduce

the source’s rate of potential emissions. Eorts to require

aggregate emission reductions by targeting entities outside

the designated source category exceed the scope of this

program; a “standard of performa nce” cannot ask another

source to operate more (or other entities to reduce demand

for a product) so that the source in the designated source

category must curtail its operations or not “perform” at all.

1. Clean Air Act (CAA), 42 U.S.C. §§7401-7671q, ELR S. CAA

§§101-618.

2. Carbon Pollution Emission Guidelines for Existing Stationary Sources:

Electric Utility Generating Units, 79 Fed. Reg. 34830 (June 18, 2014).

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practice group. ey can be reached at awood@hunton.com or

aknudsen@hunton.com, respectively.

Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.