The Legal Scrutiny Surrounding §111(d): Will It Survive or Stumble?

• Date: 01 December 2014

44 ELR 11058 ENVIRONMENTAL LAW REPORTER 12-2014

A R T I C L E S

The Legal

Scrutiny

Surrounding

§111(d): Will It

Survive or

Stumble?

by Roger R. Martella Jr.

Roger R. Martella Jr. is an attorney with Sidley Austin

LLP and, from 2006-2008, was EPA General Counsel.

Summary

EPA’s Clean Power Plan is the Obama Administra-

tion’s most important eort to address the challenge

of climate change. But it also raises signicant legal

issues of rst impression ranging from unsettled statu-

tory language to EPA’s splintered approach under dif-

ferent subsections of CAA §111 to judicial skepticism

about EPA’s expansive CAA approach using a very

narrow statutory provision. Although the courts likely

will be inclined to grant EPA signicant deference in

pursuit of the important goal of curbing greenhouse

gas emissions, concerns regarding the precedent-set-

ting nature of EPA’s “beyond the fenceline” approach

in this rule and future rulemakings for other sectors

likely could tip the scales against upholding the rule.

I. Introduction

With barely two years remaining in the Barack Obama

Administration, its biggest challenge to cement the ag-

ship element of its environmental legacy lies ahead: nal-

izing the U.S. Environmental Protection Agency’s (EPA’s)

most ambitious regulation in its history in a manner that

avoids making it also the Agency’s shortest-lived regulation

in the courts.

e president’s Climate Action Plan undoubtedly is his

tenure’s legacy item for the environment. A nd no element

is more critical to the plan than EPA’s proposed regulation

of ex isting coal- and natura l gas-red electric generating

units (EGUs) under §111(d) of the Clean Air Act (CAA).1

By the Administration’s estimates, the Existing Source Per-

formance Standard (ESPS)2 would result in a 30% reduc-

tion of greenhouse gas (GHG) emissions by 2030, at a

critical time when there is not even a glimmer of climate

change legislation on the horizon.

In what is likely to be a record-breaking sprint from the

start line to the nish line for an EPA regulation of this

magnitude, the president has directed the Agency to nal-

ize the rule by June 2015. Other experts have compellingly

presented in the Environmental Law Reporter the technical,

policy, and pragmatic elements of this landmark proposal

from a wide range of perspectives. At this stage, however,

no question is perhaps more important than this one:

Will the court s arm the precedent-setting regulation, or

remand it to the president’s successor to develop his or her

own legacy?

II. Setting the Stage for Judicial Review

Although there are scores of u nansw ered questions

about the n al §111(d) r ule, there is one universa l and

cert ain truth: Whatever the rule’s nal form, EPA is

going to be sued.

Unlike most EPA rulemakings, the ESPS will oer sev-

eral opportunities for bites at the proverbial apple for those

who seek to challenge it. e rst opportunity will be a

challenge to the nal rule in the U.S. Court of Appeals for

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

§§101-618.

2. e ESPS is published as part of the proposed rulemaking, Carbon Pollu-

tion Emission Guidelines for Existing Stationary Sources: Electric Utility

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

Author’s Note: Additionally, Roger Martella is vice-chair of the

International Bar Association’s Climate Change Justice and Human

Rights Task Force, vice-chair of the American Bar Association’s

Sustainable Development Task Force and World Justice Project

Task Force, and coeditor of the recently published I

E L: T P’ G   L

  P (R. Martella & J.B. Grosko, eds., ABA 2014).

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