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

Date01 December 2014
The Legal
§111(d): Will It
Survive or
by Roger R. Martella Jr.
Roger R. Martella Jr. is an attorney with Sidley Austin
LLP and, from 2006-2008, was EPA General Counsel.
EPAs 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
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®,, 1-800-433-5120.

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