You are here

In Defending Clean Power Plan before the Supreme Court, EPA/DOJ Misrepresent Clean Air Act with Lame Editing Tricks

Lawyers for the EPA and the Department of Justice (DOJ) are trying to pull a fast one on the Supreme Court. Through creative formatting, they are misrepresenting the text of the Clean Air Act such that it omits a major constraint on federal power.

At issue is Clean Air Act §7411(d)(1), which is a regulatory program to control emissions from existing stationary sources. Section §7411(d)(1) allegedly authorizes Obama’s marquee climate policy (known as the Clean Power Plan). Below, I’ve reposted the text of the provision in full.

§7411(d)(1) The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance.

To help you unpack this provision, I’ve ordered it below in an outline format that comports with the express structural instructions in the provision’s text: 

§7411(d)(1) The Administrator shall prescribe regulations which shall establish a procedure … under which each State shall submit to the Administrator a plan which

(A) establishes standards of performance for any existing source for any air pollutant

(i) for which air quality criteria have not been issued or which is not included on a list published under §7408(a) of this title or emitted from a source category which is regulated under §7412 of this title but

(ii) to which a standard of performance under this section would apply if such existing source were a new source, and

(B) provides for the implementation and enforcement of such standards of performance.

For challengers of the rule, the crucial language is in subsection §7411(d)(1)(A)(i), which acts to limit the EPA’s authority under the provision. Opponents of the rule argue that this subsection, by its plain terms, sets forth three independent disqualifying factors that constrain EPA’s authority:

  1. EPA can’t issue §7411(d) regulations (i.e., the Clean Power Plan) for pollutants for which air quality criteria have been issued;
  2. EPA agency can’t issue §7411(d) regulations for pollutants on the §7408 list;
  3. EPA can’t issue §7411(d) regulations for sources subject to §7412.

According to opponents of the rule, EPA’s Clean Power Plan is precluded by the third disqualifying factor, because in February of 2012, the agency subjected the power plant sector to §7412 regulations. And if existing power plants are subject to §7412 regulations, then (pursuant to the third §7411(d)(1)(A)(i) disqualifying factor) they are prohibited from being regulated under §7411(d).

Two weeks ago, challengers of the rule took this argument before the Supreme Court, as part of an effort to have the Clean Power Plan paused while it is litigated.

Last week, EPA & Justice Department counsel responded to this argument, and their reasoning is a monument to disingenuousness. Indeed, they employed editing tricks in a lame effort to misrepresent the text of the Clean Air Act to the Supreme Court.

Below, I’ve reprinted how EPA/DOJ rebut the argument that the Clean Power Plan is barred by the third prong of §7411(d)(1)(A)(i):

Section 7411(d)(1)(A) empowers EPA to prescribe regulations with respect to any air pollutant “[1] for which air quality criteria have not been issued * * * under [the NAAQS program] or [2] which is not included on a list published under [S]ection 7408(a) of this [T]itle or emitted from a source category which is regulated under [S]ection 7412 of this [T]itle.” 42 U.S.C. 7411(d)(1)(A) (emphasis added). Under a literal interpretation, Congress’s use of the word “or” to separate [1] and [2] in the preceding quotation means that Section 7411(d)(1)(A) identifies two independent bases on which EPA may regulate air pollutants for existing sources.

Do you see what the agency did there? Through egregious use of “emphasis added,” the EPA/DOJ completely recast the language of §7411(d)(1)(A), such that it reads out the substantive limits on the agency’s power.

To understand this sleight of hand, it helps to compare EPA’s retelling of the Clean Air Act with the genuine article. To this end, consider again the actual text of §7411(d)(1)(A) in an outline format that comports with the express structural instructions in the provision:

Clean Air Act: Actual Language in U.S. Code

§7411(d)(1) The Administrator shall prescribe regulations which shall establish a procedure … under which each State shall submit to the Administrator a plan which

(A) establishes standards of performance for any existing source for any air pollutant

(i) for which air quality criteria have not been issued or which is not included on a list published under §7408(a) of this title or emitted from a source category which is regulated under §7412 of this title but

(ii) to which a standard of performance under this section would apply if such existing source were a new source, and

(B) provides for the implementation and enforcement of such standards of performance.

Now, compare the structure of the actual statutory text (above) with structure that EPA presented to the Supreme Court:

Clean Air Act §7411(d)(1)(A): U.S. Code as Retold by EPA/DOJ

§7411(d)(1) The Administrator shall prescribe regulations which shall establish a procedure … under which each State shall submit to the Administrator a plan which

(A) establishes standards of performance for any existing source for any air pollutant

[1] for which air quality criteria have not been issued * * * under [the NAAQS program] or

[2] which is not included on a list published under [S]ection 7408(a) of this [T]itle or emitted from a source category which is regulated under [S]ection 7412 of this [T]itle.”

For opponents of the rule, the crucial language is §7411(d)(1)(A)(i), which acts to limit EPA’s authority. However, in EPA/DOJ’s rendering of the law, government lawyers format this provision out of the statute!

First, they omit §7411(d)(1)(A)(ii) and §7411(d)(1)(B), and thereby remove referents that demonstrate §7411(d)(1)(A)(i) to be a single provision. More to the point, the EPA/DOJ artificially bifurcate §7411(d)(1)(A)(i), such that it become two subsections (i.e., “(i)” is transformed into “[1]” and “[2]”). Under EPA/DOJ’s telling, this wacky formatting has the effect of creating “two independent bases on which EPA may regulate air pollutants for existing sources.” So a limiting subsection becomes two empowering provisions.

Simply put, EPA/DOJ is using wacky formatting to try to trick the Supreme Court into thinking §7411(d)(1)(A)(i) means the opposite of what it actually means. It is my hope that the Court calls out the government for these shenanigans.

Further reading:

This post pertains to arguments that the text of Clean Air Act §7411(d)(1) is unambiguous. As a backup argument, the EPA also claims that its interpretation merits deference from the courts, if the provision is determined to be ambiguous. To understand why EPA does not merit such deference, see this study: “EPA’s Clean Power Plan Overreach.”