Control of GHG Emissions at Existing Power Plants Flashcards

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1
Q

Overall Timeline of Control of GHG at Existing Powerplants

A
  1. EPA tried to regulate GHGs under PSD BACT -> gets struck down in URAG
  2. Clean Power Plan
  3. CPP Repeal Under Trump
  4. Affordable Clean Energy Plan Substitute from Trump
  5. DC Circuit invalidates the repeal of the CPP and the ACE passage
  6. West Virginia v. EPA - SCOTUS reverses the DC Circuit and invalidates the CPP
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2
Q

CO2 and PSD

A
  • PSD says you’re a major emitting facility if you emit more than one hundred tons per yr of any air pollutant - once GHGs become air pollutants, EPA thought it had no choice but to treat them as such for purposes of PSD
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3
Q

What would happen with GHG regulation under PSD?

A

Short Answer: # of sources would skyrocket

  • PSD reqs apply everywhere because everywhere is at least PSD for lead -> PSD major new stationary source permit requirement gets triggered by source emitting any pollutant (not just the specific PSD criteria pollutant or even only criteria pollutants) over 100/250 tons per year -> once triggered, the emission controls apply to “any regulated pollutant” that the source emits (even if its emitting below the trigger threshold)
  • Problem with CO2: gets emitted in these amounts by hundreds of thousands of sources
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4
Q

EPA Rules in Response to the CO2 Problem

A
  • EPA really wanted to regulate GHGs under PSD at stationary sources that would already be subject to regulation, but NOT treat it as a trigger (since trigger would mean way too many sources) -> didn’t think it had this authority though
  • Triggering Rule - says stationary sources would be subject to PSD and Title V permitting requirements based on potential to emit GHGs
  • Tailoring Rule - EPA trying to take steps to tailor these programs to GHGs (phase-in approach designed to regulate as close to the statutory levels as possible)
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5
Q

Utility Air Regulatory Group v. EPA - Trigger Rule

A
  • 2014, SCOTUS
  • says Mass v. EPA is just the Act-wide definition of air pollutants -> EPA has the discretion to exclude GHGs from class of regulable air pollutants under other parts of the act where inclusion inconsistent with the statutory scheme (GHG as trigger not compelled)
  • interpretation of GHGs as trigger impermissible - “would overthrow” “Act’s structure and design”
  • Scalia also uses the opportunity to expand on the major questions doctrine - GHGs as trigger “would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization” -> “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance”
  • EPA also couldn’t rewrite the threshold in its tailoring rule to 100,000 tons per yr for GHGs to trigger (impermissible)
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6
Q

UARG v. EPA - “Anyway” Sources

A
  • addresses q of whether sources that are subject to regulation under PSD permit anyway also need to meet BACT for CO2
    EPA can do this “narrow holding is that nothing in the statute categorically prohibits EPA from interpreting the BACT provision to apply to greenhouse gases emitted by ‘anyway’ sources”
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7
Q

Section 111(d) of Clean Air Act

A
  • says Administrator can establish performance standards for EXISTING sources for “other regulated pollutants” that aren’t criteria pollutants or hazardous pollutants
  • EPA uses this as authority for CPP (trying to get it out before Paris Climate Agreements in 2015)
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8
Q

Section 111(a) - Standard of Performance

A
  • BSER - degree of emission limitation achievable through application of best system of emissions reduction which the Administrator determines has been adequately demonstrated
  • this is the standard that sources regulated under 111(d) would have to meet
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9
Q

Past Tech-Based Emission Limits

A
  • scrubbers (huge buildings that remove the pollutant)
  • precipitators
  • high-efficiency combustion chambers

Didn’t really have these available for GHGs

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10
Q

Building Blocks for BSER for GHGs

A

1- heat-rate improvements at coal-fired power plants
2- shifting from coal-fired to NGCCs (natural gas)
3- zero-emission generation (shift to sources that don’t emit any GHG at all)

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11
Q

Regional Grids and BSER Blocks

A

BSER blocks all connected by regional grids (one for West, one for East, and TX has own)
- based on all of these building blocks, EPA calculates how much it thinks each grid can reduce its GHG emissions by 2030, then applies the least demanding rate to the whole country -> would mean 32% below 2005 emissions rate by 2030
- impact in terms of reductions would not have been equal around the country (certain states already have lower GHG levels, so wouldn’t need to do as much)

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12
Q

CPP - State Obligations

A
  • SIPs due September 2016, extension to Sept 2018
  • first compliance period begins 2022
  • federal implementation plan if states don’t file plans (would’ve been a nationwide cap and trade program)
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13
Q

CPP - State Options

A
  • can choose to apply EPA’s uniform emission rates OR
  • use flexibility of state specific targets (allocate burden by rate or mass, or set up a state cap and trade system) OR
  • do nothing and engage in the fed plan
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14
Q

Cap and Trade and CO2

A
  • cap and trade works well for CO2 because it’s completely fungible - doesn’t matter where it’s coming from, what matters is how much is emitted
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15
Q

North Dakota v. EPA et al.

A
  • February 2016
  • SCOTUS stays the CPP in a 5-4 vote -> CPP never went into effect
  • origin of the shadow docket (this was something they had never done before)
  • adding to the weirdness, the DC Circuit had previously denied the case - nothing was actually happening with the CPP at this time, plans not until 2018 and compliance not until 2022
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16
Q

West Virginia v. EPA - DC Circuit - Question Presented

A
  • Sept 2016 en banc hearing
  • q = whether EPA reasonably construed Section 111(d) of the Clean Air Act to permit the agency to base the “best system of emission reduction” on generation shifting (shifting from one kind of source to another rather than requiring the source to employ certain tech)
17
Q

West Virginia v. EPA - DC Circuit - WVa Fence Line Arguments

A
  • “Major question” requirement of clear statement -> EPA’s generation shifting plan was transformative
  • Statutory language:
  • assertion of authority exceeding statutory design (unbounded authority over electricity production, eliminate use of coal, + convert EPA into energy agency beyond expertise)
  • raise serious Constitutional issues (10th Am and separation of powers)
18
Q

WVa Args - Statutory Language

A

Statutory language - argue all focused on regulating a single source, can’t go beyond the fence
- “for any existing source”
- “to any particular source”
- “take into consideration…any remaining useful life”
- regulates only “sources” not “owners” as required to mandate generation shifting

19
Q

Obama EPA Responses to WVa

A

No Major Question
- not transformative
- CAA clearly states authority to regulate power plants
- clear statement applies at most in asking whether there is regulatory authority, not how much

“System” sufficiently capacious to authorize BSER based on shifting demand to other sources on interconnected grid
- how “system” operates in practice
- merely reflects how sources in fact comply with emissions limitations -> symmetry appropriate

20
Q

CPP - Trump Administration

A

Repeals CPP based on plain meaning of Clean Air Act (trying to shut it down at Chevron 1 rather than 2)
- invoked major q doctrine
- term “system” doesn’t support reg beyond the fence
- other stat lingo limits to within fence
- constitutional issues

21
Q

Affordable Clean Energy Plan

A
  • Trump plan implemented after CPP
  • keeps one of the Obama building blocks - heat-rate improvements at coal-fired power plants
  • EPA Guidelines for BSER and states develop BSER based on those, taking into account source-specific factors
22
Q

American Lung Association v. EPA

A
  • January 19, 2021, DC Circuit

Rules Trump repeal of CPP invalid
- plain lingo of Section 111(a)(1) doesn’t include “source specific caveat” (doesn’t say system has to be at and to indiv source)
- major q concerns not implicated here - EPA clearly has authority over GHGs and power plant emissions, aand has duty to regulate power plant GHG emissions mandatory after 2009 endangerment finding -> not transformative b/c each critical element of EPA authority being relied upon is actually old
- plain meaning of statutory language doesn’t authorize the CPP repeal
- doesn’t reach issue whether repeal and ACE supported by EPA reasonable interpretation of ambiguous statutory lingo

23
Q

Biden Admin Response to American Lung Association

A
  • immediately filed motion with DC Cir to stay the mandate - didn’t want CPP brought back b/c was afraid of SCOTUS -> SCOTUS granted cert anyway in West Virginia v. EPA
24
Q

Levels of Landing for Biden Admin

A
  • softest - no standing b/c CPP gone (price would mean CPP buried)
  • soft - lose on meaning of the statute (would rather lose here than reach major q doctrine and risk bad precedent)
  • hard - major q doctrine and nondelegation - lots that EPA does costs billions, there’s a lot that could be subject to major q
  • hardest - court says Congress can’t delegate to EPA authority to do something transformative at all
25
Q

Levels of Major Q Doctrine

A

Weak version - no Chevron Step 2 deference in extraordinary cases

Middle version - agencies lack authority to interpret stat lingo in extraordinary cases w/o clear congressional authorization

Strongest - Congress lacks authority to delegate lawmaking authority to agencies in extraordinary cases

26
Q

West Virginia v. EPA - Article III Standing Decision

A
  • CPP reinstatement injures state who are the “object” of its requirements
  • government failed to meet burden to show that DC Circuit’s stay of its mandate extinguished (mooted) the controversy
  • voluntary cessation not moot a case unless wrongful behavior could not reasonably be expected to occur
27
Q

WVa v. EPA - Major Q - General

A
  • “extraordinary grants of regulatory authority”
    -> “radical or fundamental change” to a statutory scheme
    -> “highly consequential power”
  • requires “clear congressional authorization” -> not accomplished by: modest words, vague terms, ambiguous text, merely plausible textual basis, ancillary provisions
28
Q

WVa - Major Q Analysis

A
  • transformative expansion of EPA authority to substantially restructure energy market + decide how much coal-based generation over coming decades
  • CAA offers only vague language in an ancillary, gap-filler, little-used backwater provision
  • no clear congressional authorization
  • Congress conspicuously and repeatedly declined to pass legislation that would have given EPA this authority
29
Q

WVa - Gorsuch and Alito

A
  • concurrence emphasizing separation of powers
30
Q

WVa - Kagan

A
  • dissent
  • “generation shifting fits comfortably within conventional meaning of system of emission reduction”
  • major q doctrine invented + being used to second-guess Congress
31
Q

WVa - Biden Admin Response

A
  • trying to come up with something very demanding within the fence line that’s achievable, but will cost so much that it indirectly prompts generation shifting
  • ex: carbon capture sequestration (filter - take C emissions and sequester in ground) - tough to argue that this is achievable though, although Inflation Reduction Act provided grants to make it more so