Notice & Comment

Wrapping Your Head Around the Clean Power Plan, Part 2

Welcome back. In my previous post, I struck up a conversation with—well, with an italicized version of myself. It’s a conversation about the EPA’s Clean Power Plan, which is a really Big Deal.

Yeah, you said that last time, but I’m still not clear why it’s such a Big Deal. You left off by saying that the Plan goes after greenhouse gases (GHGs) from old coal-fired power plants, but would that, in and of itself, be a Big Deal?

It would, but it’s bigger than that. The Clean Power Plan, if it survives, could set in motion emissions reductions in all sorts of ways, not just from old power plants. Fossil-fuel-fired power plants are just the “hook.” They provided the legal basis for the Plan. It’s as though the EPA is looking at those power plants and saying, “We’d like to reduce those emissions by a huge amount. But hey, States, if you can find other ways to cut GHG emissions within your state, we’re cool with that, too. Just git ‘er done.” So the States might choose to regulate, say, the use of energy—by way of energy efficiency requirements—rather than just energy production.

And the reductions the EPA is requiring are substantial. The Agency thinks the Plan can achieve a 30% reduction of GHG emissions (using 2005 as a baseline year) by 2030.

In fact, it’s probably not too far off to say that the Clean Power Plan is as audacious an initiative in the regulation of greenhouse gases (GHGs) as the Affordable Care Act is in the realm of health care.

Really?! That’s huge! I mean, the Affordable Care Act was a REALLY BIG DEAL.

It was, and so is this.

But the ACA was passed by Congress. The Clean Power Plan is the EPA’s creation. Can the EPA just get up one day and do something as dramatic as was the ACA?

That’s one of the biggest underlying questions presented by the Plan. The EPA says that when Congress passed the Clean Air Act, it gave the EPA the authority to regulate air pollution from all sorts of sources—especially big industrial sources like power plants. Once the Supreme Court decided that “air pollution” included GHGs, EPA was given the green light (no pun intended) to put together something like the Clean Power Plan. No further action by Congress necessary.

Of course the EPA would say that. But is that right? Shouldn’t Congress have to sign off on something so big?

It’s certainly possible that the Supreme Court will say so. The justices seem to frown on agencies’ attempts to expand their authority in novel ways. Just this past summer, the Court chastised the EPA for “claim[ing] to have discovered in a long extant statute [i.e., the Clean Air Act] an unheralded power to regulate a significant portion of the American economy.”

Yeah, you quoted that last time. But that was a different case, right? What was going on there?

Yep. It was a case involving another effort by the EPA to regulate greenhouse gases. The EPA had claimed that its authority to regulate carbon dioxide emissions extended to hundreds of thousands of sources that had not previously been regulated by the Agency. Although the Court let much of the regulation stand, the justices clearly took a dim view of novel, grandiose claims of authority based on the good ol’ Clean Air Act. It’s not too hard to imagine that they might be equally skeptical here. On the other hand, there are plenty of reasons to think that the Clean Power Plan is closer to the fairway than was the regulation at stake in last summer’s case.

Nice, a golf analogy. Now I’m tracking with you. But I’ve got to go complete my NCAA bracket. Maybe we can continue this again soon?

Deal. I’ve got to run too … have to figure out whether Notre Dame can beat Kansas.

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