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October 25, 2013

Climate Rule Deniers' View of the Carbon Rule Makes No Sense

Colstrip-MT-strip-mineColstrip, Montana, strip mine, power plant, and waste ponds. Photo by David Hanson.

Next year, EPA will propose rules under Section 111(d) of the Clean Air Act limiting carbon emissions from existing coal- and gas-fired power plants. Not surprisingly, EPA's opponents are putting up a fight. The Federalist Society and a cadre of climate-rule-denying opponents have staked out a position that EPA may not use Section 111(d) to regulate greenhouse gases from any industrial source that is already subject to pollution controls for toxic pollutants under a different part of the law -- Section 112. So, as the climate-rule-deniers would have it, if EPA limits mercury emissions from coal plants under Section 112, it is prohibited from limiting carbon emissions from those plants under Section 111(d).

The climate-rule-denier view fails in many ways. It ignores the legislative history of the Clean Air Act, which shows that Congress did not intend for the law to operate in such an arbitrary fashion and exclude greenhouse gases from control under section 111(d). Fundamentally, it makes no sense. Why would Congress want to ban EPA from controlling greenhouse pollution from coal plants just because the agency controlled mercury pollution under a totally different part of the law? Under a much more sensible reading of the Clean Air Act, EPA may not use Section 111(d) to limit coal plant emissions of a particular pollutant only if it has already regulated that same pollutant under Section 112. For example, EPA cannot regulate mercury under section 111 since it has regulated mercury under section 112. EPA is not regulating carbon dioxide under section 112, and so is free to regulate it under section 111.

EPA has already expressed this eminently reasonable position, (see http://www.epa.gov/climatechange/Downloads/anpr/ANPRPreamble5.pdf at p. 155), and EPA's reading of the law will merit a court’s deference in any lawsuits challenging the carbon rule. Even some private sector attorneys have acknowledged that EPA's is the correct reading of the law (see http://www.eenews.net/assets/2013/10/24/document_gw_01.pdf). Let’s hope the climate-rule-deniers' lawyers follow their lead and drop this last-ditch effort to block desperately needed controls on greenhouse gas pollution.

By Pat Gallagher, Joanne Spalding, Sanjay Narayan, and Andres Restrepo, Sierra Club Environmental Law Program

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