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The Emperor’s New Endangerment Theory (Part I)
EPA says the electricity sector’s climate impacts aren’t significant. Really??
EPA has proposed a novel reading of the Clean Air Act that would foreclose any regulation of CO2 emissions from power plants. EPA’s core argument is that the statute requires it to determine whether the power industry’s emissions “significantly cause or contribute” to climate change and that the industry’s emissions don’t meet that standard. On its face, this seems like a questionable conclusion, given that the U.S. power industry’s emissions would put it right below Russia in total emissions. Despite EPA’s tortuous effort to justify its conclusion, its theory remains deeply flawed.
The way EPA defines “significance” is questionable. But a court wouldn’t even have to get that far. That statute does not require that EPA make any specific finding about the significance of carbon emissions from power plants, because power plants are already on EPA’s master list of polluting industries.
The big problem facing EPA is that the statutory language is quite clear. It divides regulation of an industry’s new sources into two distinct steps. Step one is for EPA to decide whether a category of sources, like power plants, is responsible for significant harmful pollution. That list of industries that contains no mention of individual pollutants. Once an industry is on the list, there is no further mention of the reasoning behind EPA’s decision to put the industry on the list. Step two says what happens once an industry is on the list. It empowers EPA to issue pollution control requirements covering new facilities in the industry. That provision doesn’t mention whatever reasons EPA had for concluding earlier to list the industry.
The key point is that the statute decouples the factors underlying the listing decision from the later regulatory requirements. The list contains industries; the later regulations deal with specific pollutants. In fact, the statute doesn’t even require that the listing decision be made on a pollutant-by-pollutant basis; the language allows for the possibility of considering the cumulative significance of multiple pollutants. The two decisions are decoupled in practice, too. Power plants went on the list of industries in 1971, but decades later EPA was still issuing new standards for emissions of conventional air pollutants by new power plants.
Thus, there’s nothing in the statute that links EPA’s later regulations of an industry with whatever considerations went into listing it in the first place. As I discuss in my next post, EPA’s efforts to concoct a linkage requirement are convoluted and contrived.
EPA’s effort to define significance are equally suspect. It comes up with a vague and malleable standard that has never been used before in the 75 years since the statute was passed. In fact, EPA didn’t even use the same standard in the first Trump Administration. And back then, it reached the opposite conclusion, finding that the industry’s emissions of greenhouse gases were significant.
In the end, EPA’s reading of the statute is far from being what the Supreme Court has demanded: the “single, best meaning” of a law. To use a phrase I learned from my late friend Phil Frickey, “that dog won’t hunt.”
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