Control of GHG Emissions at Existing Power Plants

Question 1

Overall Timeline of Control of GHG at Existing Powerplants

Answer 1

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

Question 2

CO2 and PSD

Answer 2

• 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

Question 3

What would happen with GHG regulation under PSD?

Answer 3

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

Question 4

EPA Rules in Response to the CO2 Problem

Answer 4

• 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)

Question 5

Utility Air Regulatory Group v. EPA - Trigger Rule

Answer 5

• 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)

Question 6

UARG v. EPA - “Anyway” Sources

Answer 6

• 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”

Question 7

Section 111(d) of Clean Air Act

Answer 7

• 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)

Question 8

Section 111(a) - Standard of Performance

Answer 8

• 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

Question 9

Past Tech-Based Emission Limits

Answer 9

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

Didn’t really have these available for GHGs

Question 10

Building Blocks for BSER for GHGs

Answer 10

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)

Question 11

Regional Grids and BSER Blocks

Answer 11

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)

Question 12

CPP - State Obligations

Answer 12

• 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)

Question 13

CPP - State Options

Answer 13

• 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

Question 14

Cap and Trade and CO2

Answer 14

• 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

Question 15

North Dakota v. EPA et al.

Answer 15

• 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

Question 16

West Virginia v. EPA - DC Circuit - Question Presented

Answer 16

• 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)

Question 17

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

Answer 17

• “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)

Question 18

WVa Args - Statutory Language

Answer 18

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

Question 19

Obama EPA Responses to WVa

Answer 19

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

Question 20

CPP - Trump Administration

Answer 20

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

Question 21

Affordable Clean Energy Plan

Answer 21

• 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

Question 22

American Lung Association v. EPA

Answer 22

• 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

Question 23

Biden Admin Response to American Lung Association

Answer 23

• 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

Question 24

Levels of Landing for Biden Admin

Answer 24

• 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

Question 25

Levels of Major Q Doctrine

Answer 25

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

Question 26

West Virginia v. EPA - Article III Standing Decision

Answer 26

• 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

Question 27

WVa v. EPA - Major Q - General

Answer 27

• “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

Question 28

WVa - Major Q Analysis

Answer 28

• 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

Question 29

WVa - Gorsuch and Alito

Answer 29

• concurrence emphasizing separation of powers

Question 30

WVa - Kagan

Answer 30

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

Question 31

WVa - Biden Admin Response

Answer 31

• 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