Here Be Dragons: Legal Threats to EPA's Proposed Existing Source Performance Standards for Electric Generating Units

Date01 February 2015
Here Be Dragons: Legal Threats
to EPAs Proposed Existing
Source Performance Standards
for Electric Generating Units
by Eric Groten
Eric Groten is a 30-year Clean Air Act veteran. Since 2006, he has been a partner in Vinson & Elkins
LLC’s Environmental and Natural Resources Law Section, resident in its Austin, Texas, oce.
A104-page “Legal Memorandum”1 accompany-
ing the U.S. Environmental Protection Agency’s
(EPA’s) proposal of §111(d) Existing Source Per-
formance Standards (ESPS) for Electric Generating Units2
under the Clean Air Act (CAA)3 charts t he legal waters
the Agency will have to traverse if it adopts rules anything
like those it proposed. e need for so comprehensive a
map arises because EPA proposes a voyage far away f rom
where §111(d) has ever sailed.4 But unlike the 16th-century
explorers who ignored the dragon warnings at the edges of
1. U.S. Environmental Protection Agency (EPA), Legal Memorandum for
Proposed Carbon Pollution Emission Guidelines for Existing Electric Util-
ity Generating Units [hereinafter Legal Memo], available at http://www2.les/2014-06/documents/20140602-legal-mem-
2. U.S. EPA, Carbon Pollution Emission Guidelines for Existing Electric Util-
ity Generating Units, 79 Fed. Reg. 34830 (proposed June 18, 2014). EPA
assigns this rule several dierent names, depending on context, most fre-
quently calling it the “Clean Power Plan.” e name on the birth certicate
is an unusual choice, as “carbon” is not an EPA-designated pollutant at all,
much less the pollutant for which EPA proposes “guidelines.”
3. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
4. Although unexplored, the territory is not uncharted: EPA is navigating from
a map handed to it by the Natural Resource Defense Council (NRDC) in
2012. See Daniel Lashof et al., Closing the Power Plant Carbon Pollution
mate Polluters, NRDC Report No.12-11-A (Mar. 2013), available at http://
www.nrdc.o rg/air/ pollutio n-stand ards/fi les/pol lution- standard s-repor t.
pdf; see also Coral Davenport,   
Drew Emissions Blueprint, N.Y. T (July 6, 2014), http://www.nytimes.
com/2014/07 /07/us/how-en vironmentali sts-drew-blu eprint-for-o bama-
emissions-rule.html?_r=2. Much of what later appeared as an EPA proposal
their maps, here EPA actually will encounter the identied
dangers, which are so great a s to reduce to near zero EPA’s
prospects for safe crossing to its intended destination.
I. Where Has §111(d) Been?
As the Legal Memo acknowledges, §111(d) has a long but
tellingly undistinguished history:
Over the last forty ye ars, under CA A section 111(d), the
agency has reg ulated four pollutants from ve source
categories (i.e., phosphate fertilizer plants (uorides) [in
1977], sulfuric acid plants (acid mis t) [also in 1977], pri-
mary aluminum pla nts (uorides) [in 1980], Kraf t pulp
plants (total reduced sulfur) [in 1979], and municipal solid
waste landl ls (landll gases) [in 1996]).5
is limited and growingly distant history—consisting
of EPA guidelines recommending technology-based limits
for a few specic emission points within narrow industry
categories that emit an otherwise unregulated pollutant
signicantly emitted only by one or two industries—is
consistent with EPA’s long-expressed understanding of the
limited role that §111(d) is to play in CAA regulation.
A. Congress Intended Very Limited Use of §111(d)
In the overall CAA architecture, the ubiquitous pollut-
ants emitted by “numerous or diverse mobile or station-
ary sources”—a description never more applicable than to
greenhouse gases (GHG)—are to be regulated as “criteria
pollutants” through development of national ambient a ir
quality standards (NAAQS) under §§108 and 109, the des-
ignation of nonattainment areas u nder §107, and the state
in the Federal Register may be found within the pages of NRDC’s policy
paper, especially including its legal rationale.
5. Legal Memo, supra note 1, at 9-10.
    
 
   
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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