Historical Perspectives on §111(d) of the Clean Air Act

• Date: 01 December 2014

12-2014 NEWS & ANALYSIS 44 ELR 11095

Historical

Perspectives on

§111(d) of the

Clean Air Act

by Robert R. Nordhaus and Avi Zevin

Robert Nordhaus is Professional Lecturer in Law at George

Washington University Law School and a senior partner at

Van Ness Feldman LLP, where Avi Zevin is an associate.



Looking at the history of the Clean Air Act provides

some guidance on what Congress intended when it

required the “best system of emission reduction”

under §111(d) and on EPA’s supervisory authority over

state plans. But the drafting error, where the conict-

ing House and Senate amendments to §111(d) were

not reconciled, remains largely uninformed by the leg-

islation’s history and will have to be resolved by EPA

and, ultimately, the courts.

On June 18, 2014, the U.S. Environmental Protec-

tion Agency (EPA) published in the Federal Reg-

ister its proposed rule regu lating carbon dioxide

(CO2) emissions from existing power plants under §111(d)

of the Clean Air Act (CAA).1 e proposal, known a s the

Clean Power Plan (CPP), uses §111(d) to require a pro-

jected 30% reduction in CO2 emissions from existing elec-

tric generating units (EGUs) by 2030. It does so by setting

state-specic carbon intensity (pounds CO2 per megawatt

hour) targets (or “state goa ls”). Each state is required to

draft a compliance plan that demonstrates how it will meet

its EPA-set state goal by 2030. While states have signicant

exibility in the emission reduction measures that may be

used, the plan must be approved by EPA as “satisfactory.”

If a state does not submit such a plan or if EPA does not

nd the plan satisfactory, EPA is required to issue its own

federal compliance plan.

is A rticle reviews the history of §111(d) a nd the rel-

evance of that history to EPA’s authority to regulate such

CO2 emissions. Specically, this Article addresses three

key areas for which EPA has relied on the legislative his-

tory of §111 in its proposed CPP. First, EPA has proposed

to interpret its authority to determine the “best system of

emission reduction ... adequately demonstrated,” which

forms the basis of the stringency of the state goals, to

include measures that occur both at existing power plants

and mea sures that occur beyond those power plants, but

that reduce emissions at power plants. Section II. A. dis-

cusses how the legislative history of §111 may implicate

EPA’s authority to make this interpretation.

Second, EPA ha s proposed that it has authority not

only to require states to submit plans, but that it also has

authority to set substantive criteria for approving a state

plan, including that it has the authority to set state goals.

Section II.B. discusses how the legislative history of §111

may implicate EPA’s authority to make this interpretation.

Authors’ Note: is Article draws on Mr. Nordhaus’ presentation at

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    

        

         

invaluable editorial assistance. e views presented in this Article



Ness Feldman, its clients, or reviewers.

1. Carbon Pollution Emission Guidelines for Existing Stationary Sources:

Electric Utility Generating Units, Proposed Rule, 79 Fed. Reg. 34830 (pro-

posed June 18, 2014) (to be codied at 40 C.F.R. pt. 60) [hereinafter EGU

Emission Guidelines]. e CAA is codied at 42 U.S.C. §§7401-7671q,

ELR S. §§CAA 101-618.

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