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

Date01 December 2014
12-2014 NEWS & ANALYSIS 44 ELR 11095
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.

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