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OpenMarket: Air Quality

  • A Banner Day for Rule of Law, Constitution, and Common Sense

    February 10, 2016 11:02 AM

    In an unexpected and unprecedented decision, the Supreme Court last evening granted an application by more than two dozen states to stay implementation of the Clean Power Plan during pendency of petitions for review.  

    Absent a stay, the imminent danger was that EPA could effectively escape judicial review in implementing the rule, which is President Obama’s marquee climate policy. Last year, for example, the Supreme Court checked EPA’s absurd Utility MACT, but not before 80 percent of utilities spent billions of dollars implemented the rule during the three years that it took for the legal challenge to run its course through federal courts. So, EPA had already won, even before the Court ruled the rule was impermissible.

    The Clean Power Plan posed the same threat. Capital-intensive businesses like utilities must plan on a multi-year horizon, at least five years out. Indeed, power plants take years to build. The electric sector simply cannot wait for the slow wheels of justice to turn. As such, utilities likely would have locked in compliance during judicial review, regardless whether the regulation was determined to be illegal.

    With last evening’s decision, the Court avoided a repeat of the Utility MACT injustice and, in so doing, scored a win for the rule of law, the Constitution, and common sense. Regarding the rule of law, I explained yesterday that the Clean Air Act plainly prohibits EPA’s Clean Power Plan, and the agency’s argument to the contrary is a “monument to disingenuousness.” From a constitutional perspective, the Court’s stay prevents EPA from “commandeering” states—in violation of the Tenth Amendment—by forcing them to spend significant administrative resources implementing federal climate policy they oppose. And from a common sense standpoint, the Court’s decision arrests EPA’s attempt to overhaul the nation’s electricity sector in order to achieve climate “benefits” that are too small to be measured.

    The states submitted their application in late January to Chief Justice Roberts, who, in turn, sought counsel from his peers. As per usual, Justice Kennedy was the swing vote in the 5-4 decision. Justice Kennedy has a history of being solicitous of states’ “dignity” within American federalism, so I suspect he was impressed by the number of states that opposed the Clean Power Plan.

    Where do we go from here?

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

    February 9, 2016 2:44 PM

    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.
  • Coalition Submits Comments to EPA on Proposed Clean Power Plan Model FIP

    January 21, 2016 12:48 PM

    Today, January 21, 2016, is the final day for submission of comments on the Environmental Protection Agency’s (EPA) notice of proposed rulemaking concerning a Model Federal Implementation Plan (FIP) for compliance with the Clean Power Plan.

    In other words, this is the opportunity for states who will be impacted by the Obama administration’s Clean Power Plan to voice questions and concerns about what implementation will mean for their state in terms of cost and legitimacy.

    CEI’s William Yeatman compiled comments for submission as part of an effort driven by numerous nonprofits around the country and in Washington, D.C.

  • Are There Broader Implications of the Supreme Court's EPA Ruling?

    June 30, 2015 11:06 AM

    “In a 5-4 decision, the Supreme Court blocked the Environmental Protection Agency’s mercury and air toxics standards, charging that the administration failed to adequately consider the estimated $10 billion it would cost utilities to dramatically cut power plant pollution to comply with the measure,” reported The Washington Times yesterday.

    While the question has been raised about the broader implications of the court’s decision on other EPA regulations, CEI’s William Yeatman, says there is not much broad impact.

    As Reuter’s Lawrence Hurley reported:

    "’The agency must consider cost - including, most importantly, cost of compliance - before deciding whether regulation is appropriate and necessary,’ Scalia wrote.

    “The EPA says the rule, which went into effect in April, applies to about 1,400 electricity-generating units at 600 power plants. Many are already in compliance, the U.S. Energy Information Administration said.

    “The legal rationale adopted by the court is unlikely to have broader implications for other environmental regulations, including the Obama administration's Clean Power Plan that would cut carbon emissions from existing power plants, according to lawyers following the case.

    “William Yeatman, a fellow at the conservative-leaning Competitive Enterprise Institute, said the impact is ‘circumscribed’ due to the ‘narrowness and uniqueness’ of the legal provision the court was examining.”

    As Kate Sheppard points out at The Huffington Post, the lower court now has the opportunity to revisit the case, meaning the rule could still go forward even as the EPA adheres to the Supreme Court’s decision.

  • Separation of Powers Survived Today by a One-Vote Margin

    June 23, 2014 3:50 PM

    My colleagues over at GlobalWarming.org are already mulling over what today’s ruling in UARG v. EPA means for the future of American industry and energy production, but there’s a very important aspect to today’s ruling with constitutional implications.

    Part of the reason why EPA’s “tailoring rule” was challenged and struck down was because it was a blatant attempt to rewrite the plain wording of a law for its own convenience, a maneuver that my colleague Marlo Lewis called “breathtakingly lawless.”

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