By Rich Heidorn Jr.

WASHINGTON — For months, supporters and detractors of the Environmental Protection Agency’s Clean Power Plan have been debating whether the carbon reductions are too stringent or not tough enough; whether it will compromise reliability; whether it will save struggling nuclear power plants.

With Thursday’s publication of the rule in the Federal Register, another question took center stage, one whose answer could make the others academic: Does EPA have the legal authority to do what it did?

Twenty-six states gave their answer Friday, filing suit in the D.C. Circuit Court of Appeals to void the rule, which seeks to cut the power sector’s carbon emissions by 32% by 2030, compared with 2005 levels.

West Virginia and 23 other states — Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming — joined in one challenge while Oklahoma and North Dakota filed separate suits. Congressional Republicans have also vowed to push legislation preventing the plan from taking effect.

Fifteen other states, along with D.C. and New York City, are planning to intervene in support of EPA.

A senior EPA official and a panel of legal experts gave their own opinions at Infocast’s second Clean Power Plan Summit in Washington last week.

Best System of Emission Reduction

The Supreme Court ruled in 2007 that EPA had authority to regulate carbon dioxide. At issue is how EPA is attempting to do it, specifically how the agency defined the “best system of emission reduction (BSER),” the standard set in Section 111(d) of the Clean Air Act.

“The best system of emission reduction is a term of art in Section 111 [that] has been applied more than 60 times. And at bottom we did not undertake the process of answering that question any differently than we have in the past,” said Joseph Goffman, EPA associate assistant administrator and senior counsel.

The answer that EPA came up with — largely substituting coal-fired generation with natural gas and renewables — “amounted to assembling the information that we were getting back from states and utilities and stakeholders based on what they were already doing,” said Goffman, noting that nearly all states have energy efficiency programs and more than half have policies encouraging or requiring renewables.

“So we answered the question ‘What is BSER?’ in some ways by saying, ‘Keep doing what you’re already doing.’ Level the playing field so that everyone is doing some ensemble of those things.”

Impossible Standards for Coal Plants

Critics contend that the Clean Power Plan is based on a novel — and improper — interpretation of 111(d).

“While EPA has issued numerous rules under Section 111, it has never interpreted this section in this manner or this broadly,” said Allison Wood, an environmental and administrative law attorney with Hunton & Williams. “Are you allowed under the Clean Air Act to look beyond [the fence line] and think about the electric system as a whole? … The answer to that I would say is ‘no.’”

Peter Glaser, an energy and environmental lawyer with Troutman Sanders, noted that EPA added in the final rule something that was missing from the draft — national emission standards: 1,305 lbs/MWh for coal and oil plants and 771 lbs/MWh for natural gas plants.

“It’s something that [has been] in every single new source performance standard that EPA has ever done. The fact that they determined that they really want to have something like that in the final [rule] tells you that they were very nervous about the legal justification,” Glaser said. “The problem is that the rates they came up with are rates that obviously the sources in the category can’t meet. And that’s the whole point, actually. Coal plants are not supposed to be 1,305. It’s supposed to reduce generation or close.

“What EPA did is to say, ‘We’re not really regulating the sources in the categories; we’re regulating the owners of the sources.’ So owners can meet the standards by reducing the generation of their coal units and increasing the generation — or paying someone else — to increase generation of renewable resources. … Despite Congress having consistently resisted giving EPA authority to do cap-and-trade, that’s exactly what EPA has finalized here.”

Wood agreed. “Never before in the history of the Clean Air Act has a standard of performance … been based on ‘don’t run,’” she said. “There is not any coal plant in the world that can meet [the emissions standard]. The only way it can meet it is by not running.”

Shutting Plants Down

Panel moderator Kate Konschnik, director of the Harvard Environmental Policy Initiative, disagreed, saying that EPA has previously issued rules that “caused certain units to shut down.”

“In particular, that was squarely at issue in a D.C. Circuit case about the cement kiln industry in the 1970s — that one type of cement plant would cease to exist because of the standards,” she said.

Bob Sussman, an environmental and energy policy consultant and former EPA senior policy counsel, also saw the rule differently than the critics.

“I don’t think that 111(d) of the Clean Air Act is guaranteeing that every existing plant subject to a standard is going to be able to meet that standard and continue to operate. Indeed, the whole idea of 111(d) is to push the envelope on technology and emission reduction,” Sussman said.

“I think the important point here is that the term in the statute is ‘best system of emission reduction.’ It’s not ‘best emission-reduction technology achievable.’

‘System’ is a pretty big and [expansive] term. It doesn’t necessarily mean only hardware that can be installed at a plant site that would reduce emissions. Here EPA is defining ‘system’ in a way that reflects the interconnected nature of the electricity grid and I think that’s a very reasonable thing to do.”

Ann Weeks, senior counsel and legal director for the Clean Air Task Force, said the rule was “locking in” the industry’s displacement of coal-fired generation by cheaper natural gas.

“Could EPA have done more in this rule? Absolutely,” she said. “The rule is not really technology-forcing.”

Redundant Regulation?

Wood said the interpretation of BSER is not the only obstacle EPA will have to face in defending the rule.

“The other hurdle that EPA is going to have to get over is whether this source category can even be regulated under 111(d) of the Clean Air Act because of the fact that it is also regulated under Section 112 through the Mercury and Air Toxics Standards,” she said.

The rule’s fortunes in the D.C. Circuit may depend on which three judges are picked to hear the case. But observers on all sides of the issue expect the Supreme Court to have the last word. (See Former EPA Official: Clean Power Plan won’t Survive.)

Sussman predicted that conservative Justices Antonin Scalia, Clarence Thomas and Samuel Alito will find EPA’s interpretation of the rule unreasonable and liberals Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan to rule in the agency’s favor.

“I think in the end it will come down to what Chief Justice [John] Roberts thinks and what Justice [Anthony] Kennedy thinks,” he said.

In the court’s 5-4 ruling in Massachusetts v. Environmental Protection Agency, which established EPA’s authority to regulate CO₂, Kennedy sided with the majority, while Roberts joined the minority.

The chief justice wrote a dissent that focused not on the merits of the case but on rejecting the legal standing of the coalition of government officials and environmental groups that sought to force the Bush administration to act.

EPA’s Goffman said the agency didn’t concern itself with handicapping the justices’ leanings when it was writing the rule. “I only think about it in terms of whether we have a solid legal case to make and we think we do,” he told RTO Insider after his remarks. “We think we’re on solid ground. We trust that ultimately the merits will speak for themselves.”