Does the Clean Air Act require the Clean Power Plan or some other regulation of greenhouse gases from existing power plants?
That’s what fourteen state Attorneys General, led by New York’s Eric Schneiderman, claim in a poorly reasoned letter to President-elect Trump. The letter took issue with a request from 24 other Attorneys General, asking President-elect Trump to: 1) issue a day-one executive order declaring the Clean Power Plan illegal; and 2) order the Environmental Protection Agency to not enforce the rule.
In a previous post, I addressed claims that such an executive order would be illegal. In this post, I address the claim of the Attorneys General that Trump could not legally or constitutionally order EPA to not enforce the rule.
Below, I’ve reposted their legal argument in full:
“History and legal precedent strongly suggest that such an action would not stand up in court. Most famously, when President Harry Truman issued an executive order directing his Secretary of Commerce to seize the country’s steel mills to avert a labor strike, an action which was not authorized by statute or the Constitution, the Supreme Court invalidated the order. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). More recently, when President Obama’s administration sought to halt work on statutorily-required reviews of the Yucca Mountain project, the court ordered the government to continue the work with available funds, regardless of the President’s policy differences with the law. In re Aiken County,725 F.3d 255, 259 (D.C. Cir. 2013). Similarly, an executive order purporting to nullify the Clean Power Plan would contravene EPA’s statutory obligation under Section 111 of the Clean Air Act. See American Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011) (“§ 7411(d) requires regulation of existing sources within the same category” being regulated under § 7411(b)).
In a nutshell, they are claiming EPA has a “statutory obligation” to implement the Clean Power Plan, and, as such, it would be illegal and even unconstitutional for President Trump to order the agency to not enforce the rule.
For the proposition that the Clean Power Plan is a nondiscretionary duty, they cite language from AEP v. Connecticut to the effect that the Clean Air Act requires EPA to set Existing Source Performance Standards (ESPS, of which the Clean Power Plan is an example) for any industrial category for which the agency already has set New Source Performance Standards (NSPS). In 2015, the EPA set NSPS to control greenhouse gas emissions from coal-fired power plants; as a result, the fourteen AGs argue that EPA is obligated to impose ESPS.
The first problem with the AGs argument is their disingenuous use of precedent. In citing AEP v. Connecticut, the AGs omit the footnote that is affixed to the language they borrow. The footnote reads:
There is an exception: EPA may not employ § 7411(d) if existing stationary sources of the pollutant in question are regulated under … the “hazardous air pollutants” program.
Without getting into the details (available here), the “exception” in this Supreme Court footnote is the exact argument that is being made by opponents of the rule, including the twenty-four Attorneys General whose letter prompted a response from the group led by New York AG Schneiderman. Simply put, the “green” AGs are relying on jurisprudence that demonstrates the point they are trying to refute.
Setting aside for argument’s sake the AGs’ improperly selective citing, their letter raises an important question: Does the promulgation of an NSPS lock in an ESPS? To get to the bottom of the matter, let’s first turn to the relevant statutory text (formatting added).
The Administrator shall prescribe regulations … which establish standards of performance for any existing source … to which a standard of performance under this section would apply if such existing source were a new source …
The use of “shall” indicates that the duty to set an ESPS for sources subject to an NSPS is indeed nondiscretionary. However, there is no time given by which the agency must act, and this omission is crucial. Without a date-certain duty, the agency has a great deal more latitude to act.
What is more, there are more than 60 categories of NSPS, and there are only 5 ESPSs. If setting an ESPS for all industrial categories subject to an NSPS is nondiscretionary, there is no reason why the Clean Power Plan should jump to the head of the line. Again, this militates in favor of agency discretion.
The upshot is that setting Existing Source Performance Standards for power plant greenhouse gas emissions is only conditionally and loosely nondiscretionary. It is conditionally nondiscretionary because the duty depends on whether the 2015 New Source Performance Standards are upheld by the courts and not wholly rescinded by the incoming Trump administration. It is loosely nondiscretionary because there is no deadline by which to act, and also because there is a backlog of NSPSs to become ESPSs, so the agency has a great deal of room to maneuver, even in the face of agency-forcing litigation.
The qualified nature of this semi-nondiscretionary duty makes mincemeat of the legal precedent on which the fourteen AGs rely. For starters, I have no idea what they’re talking about by citing Youngstown. It is indeed a famous case. In fact, it’s the classic case demonstrating an unconstitutional exercise of presidential authority in domestic affairs, and all first year law students learn about it. But there’s a huge difference between seizing a private company, which was at stake in Youngstown, and ordering an agency to not enforce a regulation that the President believes is illegal. Youngstown simply has no relevance.
The fourteen AGs also point to In re Aiken County, but the comparison is inapt, because it was a date-certain 3-year deadline at issue in that case. Again, the duty at issue with the Clean Power Plan is not date-certain, and, therefore, the agency is afforded a great deal more discretion.
There are other gaps in the AGs’ reasoning. They suggest that they would challenge a day-one executive order in court and win, but it is highly unlikely they would have standing, for reasons I explain here. Also, the Clean Power Plan doesn’t take effect until 2022, so it’s unclear how it could be illegal for a president to not enforce a rule that doesn’t take effect for 5 years. Finally, the AGs conflate a duty to regulate with the regulation itself. Even if there is a duty to promulgate an ESPS, it is still possible for a particular ESPS—i.e., the Clean Power Plan—to be grossly illegal.