As far as fifteen Republican governors are concerned, federal efforts to cut carbon emissions from power plants aren’t just unwise — they’re illegal.
That was the gist of a letter the group of governors sent to the White House on Wednesday, which argues that the Environmental Protection Agency’s proposed rule to cut down on the carbon dioxide from the nation’s power plants goes beyond the scope of power given to it in the Clean Air Act.
Five of the states represented by those governors — Alabama, Indiana, Oklahoma, South Carolina, and Wyoming — are also part of a lawsuit filed back in August against the agency, which seeks to overturn the new power plant rules on similar grounds. Nine of the governors have gone on record denying the scientific validity of human-caused global warming, and the other six have striven to avoid the issue while doing little to promote green energy in their states — despite polling that shows that everyday residents of most of their states are on board with placing federal limits on greenhouse gas emissions.
The substantive content of the governors’ complaint is twofold: “The unambiguous language of the [Clean Air Act] expressly prohibits EPA from using Section 111(d) to regulate power plants because EPA already regulates these sources under another section of the CAA,” the letter said. “Moreover, even if the Agency did have legal authority to regulate power plants under 111(d), it overstepped this hypothetical authority when it acted to coerce states to adopt compliance measures that do not reduce emissions at the entities EPA has set out to regulate. Under federal law, EPA has the authority to regulate emissions from specific sources, but that authority does not extend outside the physical boundaries of such sources (i.e., ‘outside the fence’).”
Section 111(d) is the specific part of the Clean Air Act (CAA) on which EPA based its power to regulate carbon emissions from existing power plants — and the governors and other critics assert that, according to its language, sources of emissions (like power plants) can’t be regulated under both 111(d) and another part of the CAA at the same time. And existing power plants are already regulated under Section 112 of the CAA for pollutants like mercury. This is effectively the same argument made by the twelve states suing EPA, as well as by a parallel lawsuit that’s being pursued by nine of those same states in conjunction with the coal company Murray Energy.
As Ryan Cooper recently pointed out at The Week, there are two big problems with their argument. First, 111(d) was the site of a relatively unusual screw up in American legislative history; the Senate and the House wrote two different versions of 111(d), and the differences were never reconciled in conference the way they’re supposed to be in legislative procedure. The Senate version grants EPA broad regulatory authority, while the House version has the tighter language the governors and the lawsuits highlight.
But both versions were written into the country’s “Statutes At Large,” which has final authority. According to Supreme Court precedent, federal agencies are to give deference when interpreting ambiguous statutes — and there’s literally nothing more ambiguous than two different versions of the same law.
The deeper problem is that even if the House version holds sway, it arguably doesn’t say what the governors claim. The language refers to “standards of performance for any existing source for any air pollutant,” which it says can be issued as long as criteria have not been issued under another section of the CAA. By the critics’ logic, this means that if a power plant is regulated under Section 112 for one particular pollutant like mercury, then it can’t be regulated under 111(d) for mercury or for any other pollutant. Which, as Cooper notes, is blatantly illogical. Section 112 laid out a specific set of pollutants covered by the CAA, while 111(d) was a stopgap meant to give EPA power to regulate any other pollutant Section 112 hadn’t caught. As both EPA and the Supreme Court have made clear, “pollutants Section 112 didn’t catch” includes carbon dioxide. The language in the House version prevents dual regulation of pollutants from a source under two different sections — not dual regulation of a source period, regardless of pollutant.
The governors’ second complaint is that EPA gave the states a long menu of options — from energy efficiency to renewable energy to varied schedules for burning fossil fuels at power plants and more — for how they can reduce their carbon emissions both at power plants themselves (“inside the fence”) and throughout the rest of a state’s energy system (“outside the fence”) — a move the governors claim again violates the CAA’s language. It’s a rather odd complaint, given the “outside the fence” approach actually gives states far more flexibility in how they cut their emissions. Flexibility increases the chances of finding the least-costly reductions, which in turn increases the chances that the reductions won’t harm the states’ economies.
David Doniger, the Climate and Clean Air Program Director at the Natural Resources Defense Council (NRDC), and NRDC senior attorney Benjamin Longstreth also wrote that the CAA’s specific language here directs EPA to use the “best system of emission reduction.” Given the economic importance of flexibility, that language “plainly points toward a broad approach to cutting emissions. According to the American Heritage College Dictionary, a “system” is a “group of interacting, interrelated, or interdependent elements forming a complex whole.” A “system” of emissions reduction for the power sector can certainly encompass all the techniques available at reasonable cost for reducing carbon pollution at power plants, not just end-of-pipe controls.”
They also noted that EPA has successfully used the “outside the fence” approach in the past, both to regulate nitrogen oxide emissions in 1995 and to cut mercury emissions in 2005.
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