EPA’s Clean Power Plan Overreach

Agency Does Not Merit Chevron Deference to Implement Burdensome Rule


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On June 2, 2014, the U.S. Environmental Protection Agency (EPA) proposed the Clean Power Plan, President Obama’s marquee climate change initiative. In the proposal, the EPA took the unusual step of preemptively seeking Chevron deference from federal courts, even though the Clean Power Plan will not undergo judicial review until after the final rule is published in the Federal Register later this summer. Chevron deference is a famous and oft-employed administrative law principle that federal courts should defer to reasonable agency construction of the statutes they are charged with administering, in reference to a seminal 1984 Supreme Court ruling, Chevron USA Inc. v. Natural Resources Defense Council, Inc. As this analysis demonstrates, the agency’s request for judicial deference lacks merit.

The first section of this paper explains the legal reasoning behind Chevron deference, as well as subsequent refinements of the doctrine in Article III courts. The second section discusses the Clean Power Plan’s unprecedented scope and the EPA’s capacious interpretation of Clean Air Act Section 111(d), which allegedly authorizes the rule. The third section argues that the Clean Power Plan contravenes every direct and indirect foundation for Chevron deference. The last section briefly investigates how federal courts are likely to review the Clean Power Plan, without resorting to the Chevron framework, and concludes that the EPA’s interpretation is unlikely to survive such a “fair” reading.