Here Be Dragons: Legal Threats to EPA's Proposed Existing Source Performance Standards for Electric Generating Units - Vinson & Elkins LLP
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Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
C O M M E N T S
Here Be Dragons: Legal Threats
to EPA’s Proposed Existing
Source Performance Standards
for Electric Generating Units
by Eric Groten
Eric Groten is a 30-year Clean Air Act veteran. Since 2006, he has been a partner in Vinson & Elkins
LLC’s Environmental and Natural Resources Law Section, resident in its Austin, Texas, office.
A
104-page “Legal Memorandum”1 accompany- their maps, here EPA actually will encounter the identified
ing the U.S. Environmental Protection Agency’s dangers, which are so great as to reduce to near zero EPA’s
(EPA’s) proposal of §111(d) Existing Source Per- prospects for safe crossing to its intended destination.
formance Standards (ESPS) for Electric Generating Units2
under the Clean Air Act (CAA)3 charts the legal waters I. Where Has §111(d) Been?
the Agency will have to traverse if it adopts rules anything
like those it proposed. The need for so comprehensive a As the Legal Memo acknowledges, §111(d) has a long but
map arises because EPA proposes a voyage far away from tellingly undistinguished history:
where §111(d) has ever sailed.4 But unlike the 16th-century
Over the last forty years, under CAA section 111(d), the
explorers who ignored the dragon warnings at the edges of
agency has regulated four pollutants from five source
Author’s Note: The author gratefully acknowledges the collaboration categories (i.e., phosphate fertilizer plants (fluorides) [in
and editorial support of his colleagues Larry Nettles, John Elwood, 1977], sulfuric acid plants (acid mist) [also in 1977], pri-
Mike Wigmore, and Taylor Holcomb, who contributed much of the mary aluminum plants (fluorides) [in 1980], Kraft pulp
wisdom but none of the errors or outrageous opinions that may appear plants (total reduced sulfur) [in 1979], and municipal solid
in the pages that follow. This Article is intended for educational and waste landfills (landfill gases) [in 1996]).5
informational purposes only and does not constitute legal advice or This limited and growingly distant history—consisting
services. These materials represent the views of and summaries by the of EPA guidelines recommending technology-based limits
author. They do not necessarily reflect the opinions or views of Vinson for a few specific emission points within narrow industry
& Elkins LLP or of any of its other attorneys or clients. categories that emit an otherwise unregulated pollutant
1. U.S. Environmental Protection Agency (EPA), Legal Memorandum for significantly emitted only by one or two industries—is
Proposed Carbon Pollution Emission Guidelines for Existing Electric Util-
ity Generating Units [hereinafter Legal Memo], available at http://www2.
consistent with EPA’s long-expressed understanding of the
epa.gov/sites/production/files/2014-06/documents/20140602-legal-mem- limited role that §111(d) is to play in CAA regulation.
orandum.pdf.
2. U.S. EPA, Carbon Pollution Emission Guidelines for Existing Electric Util-
ity Generating Units, 79 Fed. Reg. 34830 (proposed June 18, 2014). EPA A. Congress Intended Very Limited Use of §111(d)
assigns this rule several different names, depending on context, most fre-
quently calling it the “Clean Power Plan.” The name on the birth certificate In the overall CAA architecture, the ubiquitous pollut-
is an unusual choice, as “carbon” is not an EPA-designated pollutant at all,
much less the pollutant for which EPA proposes “guidelines.”
ants emitted by “numerous or diverse mobile or station-
3. 42 U.S.C. §§7401-7671q, ELR Stat. CAA §§101-618. ary sources”—a description never more applicable than to
4. Although unexplored, the territory is not uncharted: EPA is navigating from greenhouse gases (GHG)—are to be regulated as “criteria
a map handed to it by the Natural Resource Defense Council (NRDC) in
2012. See Daniel Lashof et al., Closing the Power Plant Carbon Pollution
pollutants” through development of national ambient air
Loophole: Smart Ways the Clean Air Act Can Clean Up America’s Biggest Cli- quality standards (NAAQS) under §§108 and 109, the des-
mate Polluters, NRDC Report No.12-11-A (Mar. 2013), available at http:// ignation of nonattainment areas under §107, and the state
www.nrdc.org/air/pollution-standards/files/pollution-standards-report.
pdf; see also Coral Davenport, Taking Oil Industry Cue, Environmentalists
Drew Emissions Blueprint, N.Y. Times (July 6, 2014), http://www.nytimes. in the Federal Register may be found within the pages of NRDC’s policy
com/2014/07/07/us/how-environmentalists-drew-blueprint-for-obama- paper, especially including its legal rationale.
emissions-rule.html?_r=2. Much of what later appeared as an EPA proposal 5. Legal Memo, supra note 1, at 9-10.
45 ELR 10116 ENVIRONMENTAL LAW REPORTER 2-2015Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
implementation plan (SIP) process generally described in ther ubiquitous enough to warrant NAAQS attention nor
§110 (as elaborated in other parts of Title I of the Act). The hazardous enough to warrant §112 attention.9 EPA under-
U.S. Congress directed the control of hazardous air pol- stood Congress to be directing the Agency to pass along as
lutants (HAPs) by their listing and subsequent regulation “guidelines” to the states the knowledge accumulated from
under §112, which—as it existed from 1970 to 1990— EPA’s development of NSPS—in terms of the capabilities
required EPA to adopt standards for new and existing of control technologies for these orphan pollutants—for
sources of each listed pollutant, “at a level which in [the the states’ use in developing their own rules for analogous
Administrator’s] judgment provides an ample margin of existing sources.10 At the same time, though, they would be
safety to protect public health . . . .” merely guidelines, from which variation could be had if the
Congress codified in §111 the technology-forcing ele- state could show, as to any given source, that the national
ments of the Act—that is, the provisions that require con- “standard of performance” did not fit.
trol for control’s sake, as opposed to controls to meet a
desired environmental endpoint. Here, Congress required B. Emission Guidelines Under §111(d) Have
EPA to list a source category if “it causes, or contributes Always Been Based on the Control Technologies
significantly to, air pollution which may reasonably be Potentially Applicable to “Designated Facilities”
anticipated to endanger public health or welfare.”6 After
listing the source category, EPA must adopt “standards of In the rules EPA adopted in 1975 to fulfill its duties
performance” for newly constructed or modified sources under §111(d), the Agency established a general frame-
within that category that “reflect[ ] the degree of emission work under which the adoption of an NSPS for “des-
limitation achievable through the application of the best ignated facilities” would be followed by the proposal of
system of emission reduction [(BSER)] which (taking into “emission guidelines” for “designated pollutants” (defined
account the cost of achieving such reduction and any non- as any pollutant regulated under the NSPS that are not
air quality health and environmental impact and energy also covered by either a NAAQS or by §112 regulation).11
requirements) the Administrator determines has been ade- The emission guidelines would be mostly informational,
quately demonstrated.”7 documenting for the states’ benefit EPA’s understanding
But it is one thing to prescribe national standards of per- of the health and welfare effects of the “designated pol-
formance for sources that have not yet been built and whose lutants,” a description of the emission controls available,
construction can accommodate emerging design expecta- their capabilities, the time frames potentially required for
tions. It is quite another to impose uniform technology- their installation, and so forth.12
forcing measures on existing sources. For existing sources, After final promulgation of these guidelines, each state
§111(d) requires EPA to establish an SIP-like process for would then have nine months to either: (1) certify that no
setting standards of performance for existing sources in the designated facilities exist within its jurisdiction; or (2) sub-
categories regulated by new source performance standards mit to EPA a state plan to either (a) impose EPA’s emission
(NSPS), under which EPA would issue “guidelines” and guideline standards on each of their designated facilities,
states would submit source-specific plans that varied from or (b)
the EPA guidelines as dictated by “other factors.”8
As EPA recognized from its beginning, this statutory provide for the application of less stringent emissions
architecture left for §111(d) a very limited role: technology- standards or longer compliance schedules . . . provided
forcing of controls on existing sources of pollutants nei- that the State demonstrates with respect to each such
facility (or class of facilities): (1) Unreasonable costs of
control resulting from plant age, location or basic pro-
6. 42 U.S.C. §7411(b)(1).
7. 42 U.S.C. §7411(a)(1).
8. 42 U.S.C. §7411(d)(1) (emphasis added): 9. See 40 Fed. Reg. 53340 (Nov. 17, 1975):
(1) The Administrator shall prescribe regulations which shall estab- [S]ection 111(d) requires control of existing sources of a pollutant
lish a procedure similar to that provided by section 7410 of this if a standard of performance is established for new sources under
title under which each State shall submit to the Administra- section 111(b) and the pollutant is not controlled under sections
tor a plan which establishes standards of performance for any 108-110 or 112. In general this means that control under section
existing source for any air pollutant (i) for which air quality 111(d) is appropriate when the pollutant may cause or contribute
criteria have not been issued or which is not included on a list to endangerment of public health or welfare but is not known to
published under section [108(a)] or emitted from a source cat- be “hazardous” within the meaning of section 112 and is not con-
egory which is regulated under section [112] but (ii) to which a trolled under sections 108-110 because, for example, it is not emit-
standard of performance under this section would apply if such ted by “numerous or diverse” sources as required by section 108.
existing source were a new source . . . . Regulations of the Ad- 10. See 40 Fed. Reg. at 53343 (“Requiring a technology-based approach [in
ministrator under this paragraph shall permit the State in ap- §111(d)] would also take advantage of the information and expertise avail-
plying a standard of performance to any particular source under able to EPA from its assessment of techniques for control of the same pol-
a plan submitted under this paragraph to take into consideration, lutants from the same types of sources under section 111(b) . . . .”).
among other factors, the remaining useful life of the existing source 11. Id. at 53340 (still codified, largely unchanged, at 40 C.F.R. §60.21).
to which such standard applies. 12. Id. at 53346 (then and still codified at 40 C.F.R. §60.22).
2-2015 NEWS & ANALYSIS 45 ELR 10117Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
45 ELR 10118 ENVIRONMENTAL LAW REPORTER 2-2015
cess design; (2) physical impossibility of installing nec- emission reduction” is to use fuel-burning generation less,
essary control equipment; or (3) other factors specific to or not at all.
that facility . . . .13 The administrative record includes EPA’s analysis of
EPA has once before tried to use §111(d) to establish what it believes to be the optimized mix of generation
a cap-and-trade program instead of source-specific limits assets for each state. The end result of EPA’s analysis is
based on circumstance-adjusted BSER. In the Clean Air to assign each state an interim (2020) and a final (2030)
Mercury Rule (CAMR), EPA set presumptive mercury “emission performance goal,” which reflects what EPA
emission limits on all coal-fired power plants based on expects as the statewide average emissions (on a lbs CO2/
BSER, which it then totaled up to create a national emis- MWh basis) from the universe of existing EGUs within
sions budget.14 EPA distributed that budget as credits each state. By summer of 2016 (a year after the anticipated
among the states to assign to their existing source popula- adoption date), each state must submit a plan showing to
tions, which could then trade the credits to allow for opti- EPA’s satisfaction that it has in place a mixture of control
mization of control efforts. requirements, incentives, and so forth demonstrated to
But several things are notable about this use of §111(d). ensure that the CO2 emission rate for all existing EGUs
First, the CAMR was vacated by the U.S. Court of Appeals within the submitting state’s jurisdiction will not exceed
for the District of Columbia (D.C.) Circuit in New Jersey v. the CO2 intensity prescribed for that state by EPA.
EPA,15 and so it remains true that EPA has never (validly) In short, EPA now proposes to travel under §111(d) flag
strayed “over the fenceline” when setting §111(d) require- far from its home port:
ments. Second, even had that approach been validated, it • Never before has EPA used §111(d) for a ubiquitous
still would have compelled no more than source-by-source pollutant. Its scant previous uses over the last 40
compliance with adjusted BSER: The CAMR, in effect, years have been directed at obscure pollutants emit-
amalgamated the BSER performance of the designated ted by a few specialized industries (such as fluorides
facilities only. Finally, the “other grounds” on which the and landfill gases). Recall that §111(d)’s design is to
D.C. Circuit vacated the CAMR was its holding that mer- pick up unique, industry-specific pollution problems.
cury (a pervasive HAP) should have been regulated under As EPA noted in 1975, “[q]uite often health and wel-
§112, not §111(d). Perhaps a reviewing court will likewise fare problems caused by [designated pollutants of the
conclude that EPA’s detour into §111 for GHGs misreads type intended to be covered by §111(d)] are highly
the statutory map, which directs EPA instead to use §§108- localized and thus an extensive procedure, such as
110 as appropriate to deal with pervasive air pollutants the SIPs require, is not justified.”17 EPA has made
emitted from “numerous and diverse mobile and station- CO2 an orphan solely by its decision to decline to
ary sources.”16 regulate CO2 under the NAAQS program. Had CO2
been treated (as it arguably should be) as a criteria
II. Where Does EPA Propose to Go With pollutant, emitted as it unquestionably is by “numer-
§111(d)? ous or diverse mobile or stationary sources,” it would
not be an orphan, waiting to be adopted by §111(d)
The pending proposal looks nothing like any of the few as a “designated pollutant.”18
§111(d) actions previously taken. The ESPS proposal does • Never before has EPA successfully used §111(d) to
not establish model emission limits for the variety of source regulate so broad and well-populated a source cat-
types it purports to regulate—for example, some variation egory. Again, because §111(d) was intended to pick
on the pounds of carbon dioxide per megawatt-hour (lbs up isolated, industry-specific pollution issues (for
CO2/MWh) limits established for electric generating units example, fluorides from phosphate fertilizer plants,
(EGUs) in the pending NSPS proposal, customized to the of which there are fewer than 35 scattered around
capabilities of the individual source type. Instead, EPA the United States), EPA long ago understood that
has undertaken to review the present generation mix in
each of the 50 states, and to establish for each state the 17. 40 Fed. Reg. at 53342.
CO2 intensity of generation that it believes to be achievable 18. A petition seeking to compel EPA to treat GHG as a criteria pollutant has
been pending at EPA since 2009. See Ctr. for Biological Diversity, Pe-
by effecting not only decreases in the heat rate of existing tition to Establish National Pollution Limits for Greenhouse Gases Pursuant
designated facilities, but also in displacing existing gen- to the Clean Air Act (2009), http://www.biologicaldiversity.org/programs/
eration with less GHG-intensive generation and reducing climate_law_institute/global_warming_litigation/clean_air_act/pdfs/Pe-
tition_GHG_pollution_cap_12-2-2009.pdf. EPA has taken no action on
demand. In short, EPA proposes that the “best system of this petition, and there is no evidence that its proponent(s) have pursued
it. No doubt both sides of that transaction fear reaping the whirlwind, and
perhaps even the overruling of Massachusetts v. EPA, 494 U.S. 497, 37 ELR
13. Id. at 53347 (then and still codified at 40 C.F.R. §60.24(f )). 20075 (2007), insofar as embarking on a GHG NAAQS no doubt would
14. See 70 Fed. Reg. 28606 (May 18, 2005). expose the error in Justice John Paul Stevens’ assumption that “EPA juris-
15. New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008), cert. denied sub nom. diction [over GHG] would lead to no such extreme measures” as had pre-
Utility Air Reg. Grp. v. New Jersey, 555 U.S. 1169 (2009). cipitated earlier U.S. Supreme Court rulings rejecting grand agency claims
16. The unsuitability of that process for a global pollutant is the subject of an- of authority absent clear congressional delegation. Yet, it is EPA’s failure to
other paper. See Carol E. Dinkins & Eric Groten, Treatment of Greenhouse undertake one duty (to use §§108-110 to regulate ubiquitous air contami-
Cases Under the Clean Air Act (LEXIS/NEXIS July 2010). nants) that leaves it (arguably) free to regulate under §111(d).Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
2-2015 NEWS & ANALYSIS 45 ELR 10119
“the number of designated facilities per state should opinion in UARG warned against finding big programs in
be few.”19 small, nondescript packages:
• Never before has EPA set performance standards for EPA’s interpretation is also unreasonable because it
a state, as opposed to a source of emissions. Instead, would bring about an enormous and transformative
and unsurprisingly, emission guidelines have been expansion in EPA’s regulatory authority without clear
issued for actual sources; in fact, they usually pre- congressional authorization. When an agency claims to
scribe specific standards for specific operations within discover in a long-extant statute an unheralded power
the designated facilities (for example, five parts per to regulate “a significant portion of the American econ-
million (ppm) of total reduced sulfur from digester omy,” . . . we typically greet its announcement with a
systems used at Kraft pulp mills). measure of skepticism. We expect Congress to speak
clearly if it wishes to assign to an agency decision of vast
• Never before has EPA required so complex and mul-
“economic and political significance.” . . . The power to
tidisciplinary an exercise, commanding the consid-
require permits for the construction and modification
eration and participation not only of each state’s air
of tens of thousands, and the operation of millions, of
quality regulators, but also its utility regulators, its local
small sources nationwide falls comfortably within the
governments, its appropriators, and even its individual
class of authorizations that we have been reluctant to
citizens. In fact, EPA has long proclaimed its under-
read into ambiguous statutory text.22
standing that “[s]ection 111(d) plans will be much less
complex than the SIPs [submitted under §110].”20 The power to require emission permits, though intru-
sive, pales relative to the power to establish energy policy
• Most notably, never before has EPA set any technol-
for the nation. As EPA Administrator Gina McCarthy
ogy-based standard that relies on constraining or
frankly acknowledged in July 2014 testimony before the
even prohibiting production from the entire industry
U.S. Senate, the Agency’s proposal is energy policy, not
as a “system of emission reduction.”
even well-disguised in air quality costume:
In considering a far less ambitious departure from
And the great thing about this proposal is it really is an
CAA precedent, the U.S. Supreme Court, in Utility Air
investment opportunity. This is not about pollution control.
Regulatory Group (UARG) v. EPA, already has expressed its
It’s about increased efficiency at our plants . . . . It’s about
unwillingness “to stand on the dock and wave goodbye as
investments in renewables and clean energy. It’s about
EPA embarks on [a] multiyear voyage of discovery.”21
investments in people’s ability to lower their electricity
bills by getting good, clean, efficient appliances, homes,
III. What Dragons Await? rental units.23
After 40 years of having used §111(d) for isolated air pollu- Accordingly, EPA is unlikely to find it easy to slay all of
tion issues, EPA now proposes to use it to direct the nation’s these legal dragons in judicial defense of its recent discov-
means of producing electricity. Actually, the Agency’s pro- ery of so great a power in humble §111(d).
posal goes a step further: It commands the states to try and
do so first. Truly, that is a lot to ask of one obscure subsec- A. Regulation of EGUs Under §112 Preempts Any
tion in a law comprehensively dedicated to air pollution, Regulation Under §111(d)
in which Congress otherwise has adopted entire titles (for
example, Title IV for sulfur dioxide controls) when intend- At least one dragon did not even wait for the ship to cast
ing nation-scale regulation of electric utility air emissions. off. On the day the ESPS proposal hit the Federal Register,
Consider that §111(d) comprises 301 words, compared to
Title IV’s 23,725. And the intrusiveness and scope of what
22. UARG, 134 S. Ct. at 2444 (citations omitted). This was not Justice Sca-
EPA wrings out of §111(d) is far greater than that directed lia’s first warning against finding significant powers in ambiguous CAA
by Title IV, ultimately dictating far more than which language. He did so earlier in Whitman v. American Trucking, 531 U.S.
power plants have to install scrubbers. 457, 468, 31 ELR 20512 (2001), where—writing for all of his colleagues
save Justice Stephen Breyer, and citing the same precedent that he did in
As only partially elaborated below, a number of textual UARG—Justice Scalia noted that the absence of clear authority for EPA to
and precedential dragons threaten EPA’s enterprise. All will consider costs in setting NAAQS was fatal to a claim that the Agency was
be animated by the Supreme Court’s most recent cautions obligated to do so:
Congress, we have held, does not alter the fundamental details of a
about the Agency’s bold use of the CAA to take on GHG regulatory scheme in vague terms or ancillary provisions—it does
emissions. In rejecting EPA’s conclusion that the Act com- not, one might say, hide elephants in mouse holes. See MCI Tele-
pels GHG to be treated as a trigger to its stationary source communications Corp. v. American Telephone & Telegraph Co.,
512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco
permitting programs, Justice Antonin Scalia’s majority Corp., supra, at 159-160. Respondents’ textual arguments ulti-
mately founder upon this principle.
23. EPA’s Proposed Carbon Pollution Standards for Existing Power Plants: Over-
19. 40 Fed. Reg. at 53345. sight Hearing Before the S. Comm. on the Environment & Public Works,
20. Id. (emphasis added). 113th Cong. (2014) (statement of Gina McCarthy, Administrator, U.S.
21. Utility Air Reg. Grp. (UARG) v. EPA, 134 S. Ct. 2427, 44 ELR 20132 EPA) (emphasis added), available at http://cnsnews.com/news/article/
(2014). susan-jones/epa-chief-not-about-pollution-controlits-investment-strategy.Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
45 ELR 10120 ENVIRONMENTAL LAW REPORTER 2-2015
Murray Energy Corp. filed a petition for an extraordinary whether the U.S. Code actually is the law.31 According to
writ in the D.C. Circuit seeking to prohibit EPA from pro- EPA, the U.S. Code, as quoted above, published an incom-
ceeding with the rulemaking.24 Less than two weeks later, plete version of what President George H.W. Bush signed
nine states, led by West Virginia, filed an amicus brief in into law in 1990. EPA elaborates on the legislative history
support of that petition. Those same states, joined by four to argue that two different versions of the law were enacted
more, followed with a D.C. Circuit petition of their own, (one by each House of Congress), creating an “ambiguity,”
seeking judicial review not of EPA’s act of proposing the the resolution of which is deferred to the implementing
rule, but of the Agency’s final action in 2010 approving a agency under Chevron.32 But as Murray Energy notes in its
consent decree by which it had committed to adopting per- petition, it may not be up to EPA to look behind the codi-
formance standards for EGUs under §111(d).25 The D.C. fied statute to find codification errors:
Circuit has since ordered these cases to be briefed on paral-
The “Code of Laws of the United States current at any
lel schedules ending in early March 2015, and then argued
time shall . . . establish prima facie the laws of the United
before the same panel.
States.” 1 U.S.C. §204(a). That prima facie evidence is dis-
Both Murray Energy and the West Virginia petitioners
placed only where the U.S. Code is “inconsistent” with
base the substance of their petitions on a phrase in §111(d)
the Statutes at Large. See Stephan v. United States, 319
(1)(A) that certainly does appear to prohibit any use of it
U.S. 423, 426 (1943).33
to regulate EGUs. Extracted in relevant part, the statute
extends EPA’s authority to “establish[ ] standards of per- This is especially true as here, when the uncodified
formance for any existing source for any air pollutant . . . change is a nonsubstantive, conforming amendment of
which is not . . . emitted from a source category which is reg- language removed by the substantive amendment. In such
ulated under section [112] . . . .”26 Unquestionably, EGUs cases, the Office of Legislative Counsel inevitably ignores
are a source category regulated under §112,27 and it would the inconsistent (non)conforming amendments. The end
seem beyond question that the highlighted language would result is exactly what we see in §111(d) as published in the
foreclose the use of §111(d).28 Indeed, in passing on statu- U.S. Code.
tory displacement arguments in American Electric Power Even if the two separate sections of the Statutes at Large
Co. (AEP) v. Connecticut,29 the Supreme Court noted that that amend §111(d) had to be effectuated, they would not
§111(d) authority is constrained by actions taken under yield the result that EPA wishes. Section 108(g) of Public
§112: “EPA may not employ §[111](d) if existing stationary Law No. 101-549, the 1990 CAA Amendments, as pub-
sources of the pollutant in question are regulated under lished in the Statutes at Large, contains the following pro-
the national ambient air quality standard program, §§[108- vision in the section of the bill directed to amendments
110], or the “hazardous air pollutants” program, §[112]. See to Title I (in which §111 is codified): “(g) Regulation of
§[111](d)(1).”30 Existing Sources—section 111(d)(1)(A)(i) of the Clean Air
EPA’s Legal Memo, however, describes §111(d)(1)(A) as Act . . . is amended by striking ‘or 112(b)(1)(A)’ and insert-
“ambiguous,” not because the U.S. Code is ambiguous on ing ‘or emitted from a source category which is regulated
its face, but because the Agency now thinks it is ambiguous under section 112.’”34 And §302(a) of Public Law No. 101-
549, which merely lists conforming amendments related to
24. See Murray Energy Corp. v. EPA, No. 14-1112 (D.C. Cir. filed June 13, the adoption of Title III (the overhaul of §112), contains
2014) [hereinafter Murray Energy Pet.]. Murray later filed a (slightly) more
conventional petition for judicial review under CAA §307, although such
the following: “(a) Section 111(d)(1) of the Clean Air Act
petitions usually follow final adoption of the rule at issue. See Murray En- is amended by striking ‘112(b)(1)(A)’ and inserting in lieu
ergy Corp. v. EPA, No. 14-1151 (D.C. Cir. filed Aug. 15, 2014). Both thereof ‘112(b).’”35 This latter change is not included in the
Murray cases have since been consolidated.
25. See West Virginia. v. EPA, No. 14-1146 (D.C. Cir. filed July 31, 2014)
statute as published in the U.S. Code.
[hereinafter West Virginia Pet.]. In any event, both sections of Public Law No. 101-549
26. 42 U.S.C. §7411(d)(1) (emphasis added). can be fully incorporated into the Act as amended with-
27. See Mercury and Air Toxics (MATS) Rule, 77 Fed. Reg. 9304 (Feb. 16,
2012). Those rules have been upheld on judicial review, see White Stal-
out any conflict at all. Codifying everything in it, leaving
lion Energy Ctr., LLC. v. EPA, 748 F.3d 1222, 44 ELR 20088 (D.C. Cir. out no change effected by any provision of it, §111(d)(1)
2014), although the Supreme Court has granted petitions for certiorari. (A)(i) would read as follows (paraphrasing the unaffected
See id., cert. granted sub nom. National Mining Assoc. v. EPA, No. 14-49
(U.S. Nov. 25, 2014), available at http://www.supremecourt.gov/orders/
pre- and postlude):
courtorders/112514zr_32q3.pdf. Conceivably, any Supreme Court reversal
and subsequent vacatur of these MATS rules could remove arguments based
[EPA shall issue emission guidelines requiring states to
on §112 displacement. adopt] standards of performance for any existing source
28. EPA’s briefing in the Murray litigation offers various strained alternatives, for any air pollutant (i) for which air quality criteria have
none of which did the Agency express in either the Legal Memo that un-
derpins its proposal, or in any of the other rulemakings or rule defenses
not been issued or which is not included on a list pub-
involving the interpretation of the §112 exclusion. See Murray Energy Pet.,
EPA Response to Petition, at 28-30 (filed Nov. 3, 2014).
29. American Elec. Power Co. (AEP) v. Connecticut, 131 S. Ct. 2527, 41 ELR 31. See Legal Memo, supra note 1, at 21-27.
20210 (2011). 32. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 14
30. AEP, 131 S. Ct. at n.7. The D.C. Circuit also supported §112 preclusion of ELR 20507 (1984).
§111(d) rules, when it found that EPA could not use §111(d) as authority 33. Murray Energy Pet., supra note 24, at 20.
for the CAMR rule given that it had not properly withdrawn §112 regula- 34. Pub. L. No. 101-549, 104 Stat. 2399, 2467 (1990).
tion of EGUs. See New Jersey v. EPA, 517 F.3d 574, 583 (D.C. Cir. 2008). 35. Id. at 2574.Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
2-2015 NEWS & ANALYSIS 45 ELR 10121
lished under section 108(a) or section 112(b) or emitted Whether the U.S. Code stands as written (in accordance
from a source category which is regulated under section with 1 U.S.C. §204(a)) or whether a court looks behind
112, but (ii) [for which there is a corresponding NSPS]. it to the Statutes at Large and gives effect to all of its pro-
The highlighted phrase is what would be added to the visions, EPA loses the ability to issue ESPS for EGUs.
U.S. Code if all of the changes were fully incorporated EPA “wins” only if: (1) a court is willing to find a conflict
(updating the cross-reference to the subsection of §112 between two sections of the Statutes at Large where there
where the HAPS list is to be found, post-1990). This cre- is none; and (2) it is allowed to ignore the substantive one
ates no conflict at all: Congress simply expanded the list of of those two sections. And even then, given recent Supreme
independent regulatory actions that would displace regula- Court squints at Chevron, EPA might not get the deference
tion under §111(d). it needs to win.39
The ultimate question here is whether §111(a)(1)(D) pre- Section 112 displacement is the first and fiercest dragon
cludes regulation based on §112 displacement by pollutant EPA will face, but EPA will have the early upper hand
or by source category. EPA opines that the law should favor fending it off. Although §112 displacement is the substan-
only pollutant-specific preemption (ignoring §108(g) of tive centerpiece of both the Murray Energy and West Vir-
the Statutes at Large), because that would preserve a more ginia petitions filed in response to the ESPS proposal, both
robust role for §111(d).36 EPA argues that: petitions face substantial procedural headwinds. Murray
Energy’s petitions are direct challenges to EPA’s proposal,
The text as presented in the U.S. Code could be read to yet §307 of the Act allows for judicial review only of final
exclude virtually every pollutant from regulation under EPA actions.40
section 111(d), because it would be difficult to identify
any pollutant that is not emitted from at least one source
category that is regulated under 112. We do not need to 39. In Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014), a bare plurality
of a fractured Court relied on Chevron to suggest deference to the imple-
address this ridiculous result.37 menting agency in resolving conflicts within the immigration statute. But a
concurring opinion written by Chief Justice John Roberts, joined by Justice
But that result is not at all ridiculous. Recall that by Scalia, saw this not as a matter of interpretation appropriately left to the
1990, EPA had spent 20 years of regulatory authority implementing agency, but as a direct conflict the resolution of which is left
under §111(d) to issue around five technology-based emis- to the Court:
To the extent the plurality’s opinion could be read to suggest that
sion guidelines. This would not have evidenced to Con- deference is warranted because of a direct conflict between these
gress the importance of retaining ESPS authority, at least clauses, that is wrong. Courts defer to an agency’s reasonable con-
in that form. struction of an ambiguous statute because we presume that Con-
gress intended to assign responsibility to resolve the ambiguity to
More importantly, at the same time that Congress was the agency. Chevron . . . at 843-844. But when Congress assigns
revising §111(d), it also was transferring to §112 the tech- to an agency the responsibility for deciding whether a particular
nology-forcing function previously lodged in §111. In fact, group should get relief, it does not do so by simultaneously saying
that the group should and that it should not. Direct conflict is not
Congress dedicated an entire title of the 1990 Amend- ambiguity, and the resolution of such a conflict is not statutory
ments (Title III) to this effort. The genesis of Title III is construction but legislative choice. Chevron is not a license for an
well-known: Overwhelmed by the inability to make the agency to repair a statute that does not make sense.
Scialabba, 134 S. Ct. at 2214 (Roberts, C.J., concurring). Notably, Justice
risk-based findings needed to support standards for new and Samuel Alito agreed with this principle, even though he dissented in the
existing sources of HAPs under §112 as that section had result. Scialabba, 134 S. Ct. at 2216 (Alito, J. dissenting) (disagreeing with
been framed since 1970, EPA had by 1990 developed only the plurality opinion that “when two halves of a statute ‘do not easily cohere
with each other,’ an agency administering the statute is free to decide which
about the same number of “national emission standards for half it will obey”). Accordingly, the Court seems perfectly split on whether
hazardous air pollutants” (eight) as it had issued guidelines Chevron applies when an agency alleges a facially irreconcilable conflict
under §111(d) (five). Accordingly, Congress wholly rewrote within a statute. Regardless, though, here there is none.
40. See, e.g., Las Brisas v. EPA, No. 12-1248 (D.C. Cir. order dated Dec. 13,
§112, transforming it into a technology-forcing (“maximum 2012) (dismissing as premature a challenge to EPA’s proposal of MACT
achievable control technology”) model for regulating HAPs, standards for new EGUs). The Las Brisas case, as with virtually all CAA
and itself listing (in §112(b)) 188 HAPs for EPA to regu- rule challenges, involved complaints about the content of the rule itself (for
example, the record did not suffice to support the level of the standard), and
late. Having identified the pollutants of interest and directed not about whether EPA could promulgate at least some rule on the subject.
their maximum control (from a technology-forcing perspec- This may be a useful distinction here, where the argument is that the very
tive), it is quite conceivable that Congress was perfectly con- issuance of a proposal is itself the action for which judicial review is sought.
Section 307(b) can be literally read to support this outcome: “Proposal”
tent to strip §111, and especially §111(d), of much scope.38 necessarily is “an action of the Administrator in promulgating a rule,” and
But regardless of how one reads the tea leaves of intention, that is what §307(b) makes judicially reviewable. The action is final in the
reading the actual words of Public Law No. 101-549 leaves sense that it does not matter what record EPA develops in response to the
proposal or how the rule may change in response to comments. The sole is-
little doubt that is what Congress did. sue that these present petitioners bring is that EPA wholly lacks authority to
adopt any rule on the subject (due to §112 displacement), which is ripe at
the moment of proposal. The author is not aware of any case in which it has
36. See Legal Memo, supra note 1, at 22-27. been determined that this distinction makes a difference. While the notion
37. Id. at 22-23, n.22. is appealing that a massive rulemaking effort (diverting substantial resources
38. Perhaps, it was an easier legislative compromise for this change to be made and immediately imposing planning costs on the states and power sector)
than to repeal §111(d) altogether. Or perhaps, it was left in the event some can be avoided if demonstrably ultra vires, still it seems unlikely that the
future source-pollutant combination might fall into gaps left by new §112, D.C. Circuit would open itself to two-bite litigation. Even though the D.C.
without speculating on the future existence of such a gap. Circuit panel has invited substantive briefing on the merits of the MurrayCopyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
45 ELR 10122 ENVIRONMENTAL LAW REPORTER 2-2015
The West Virginia petitioners, evidently recognizing second alternative construct is that EPA can be seen as just
this barrier, do identify a “final action” that arguably passes regulating the covered EGUs, with the amount of emis-
muster under §307: They seek review of a 2010 consent sions allowed from each state’s population of covered EGUs
decree by which EPA agreed to propose and adopt NSPS influenced by the availability of alternatives to dispatching
for coal-fired power plants, and by averring that the sub- them; in other words, the BSER is not to use them as much
sequent adoption of EGU standards under §112 (in 2012) or even at all.45 Both of these constructs struggle not only
and issuance of the ESPS proposal (in 2014) present against statutory language, but against likely incredulity
“grounds arising after” sufficient to overcome the normal that Congress, in enacting §111(d), intended to deputize
statutory obligation to have sought review within 60 days EPA as the Energy Policy Agency.
of that 2010 final action.41 It is not clear, though, how judi-
cial review or even eventual vacatur of that consent decree 1. EPA Cannot Treat an Entire State or Region
would necessarily preclude EPA from proceeding with the as a “Source”
ESPS rulemaking.
And so, while EPA may be able to set sail under §111(d), Under §111(d), EPA’s obligation is to establish “standards
we rate very low its prospects for a safe return. One day, it of performance for any existing source,” and so by defini-
will have to fight off not just the §112 preemption dragon, tion, the “standard of performance” must be applicable to
but many more besides. (“for”) “the existing source.” An “‘existing source’ means
any stationary source other than a new source.”46 And so,
B. EPA Cannot Require Reductions Outside the any proposed standard of performance necessarily identi-
Fenceline fies the “stationary source” to which it applies. The “stan-
dard of performance” that EPA proposes (for example, 853
EPA’s obligation under §111(d)(1)(A) is to “establish a lbs CO2/MWh for Texas) is applicable to the state, and is
standard of performance for any existing source,” with based on what EPA has determined is achievable by appli-
“standard of performance” defined to mean “a standard cation of BSER (the four building blocks) to the generation
for emissions of air pollutants which reflects the best mix of that state. Accordingly, in this first construct, the
system of emission reduction . . . .”42 EPA’s entire pro- state must be the “stationary source.”
posal rests on the assumption that the BSER consists of
four different building blocks of energy policy, which include operational improvements and equipment upgrades that
EPA has applied to the generation mix of each state. The the coal-fired steam-generating EGUs in the state may undertake
“standard of performance” resulting from this applica- to improve their heat rate (building block 1) and increases in, or
tion of BSER is reduced to a single “rate-based emission retention of, zero- or low-emitting generation, as well as measures
to reduce demand for generation, all of which, taken together, dis-
performance goal” unique to each state to be achieved place, or avoid the need for, generation from the affected EGUs
by 2020, and another (slightly lower) single goal for (building blocks 2, 3, and 4). All of these measures are compo-
2030. The achievement of that goal, however, depends nents of a “system of emission reduction” for the affected EGUs
because they either improve the carbon intensity of the affected
on events and actions “beyond the fenceline” of the “des- EGUs in generating electricity or, because of the integrated nature
ignated facility” (the EGU). of the electricity grid and the fungibility of electricity and electric-
EPA offers two conceptual constructs to justify its deci- ity services, they displace or avoid the need for generation from
those sources and thereby reduce the emissions from those sources.
sion to assign each state its own “standard of performance.” Moreover, those measures may be undertaken by the affected EGUs
The first is that all “affected entities”43 within a state com- themselves and, in the case of building blocks 2, 3, and 4, they may
pose the “source,” such that, for example, the 853 lbs CO2/ be required by the states.
45. See, e.g., Legal Memo, supra note 1, at 15-16 (emphasis added):
MWh assigned to Texas for 2020 represents the applica- For the alternative approach for the BSER, the EPA is identify-
tion of the BSER to all affected entities within Texas.44 The ing the “system of emission reduction” as including, in addition to
building block 1, the reduction of affected fossil fuel-fired EGUs’
mass emissions achievable through reductions in generation of
Energy and West Virginia petitions, allowing the cases to survive motions to specified amounts from those EGUs. Under this approach, the
dismiss, the justiciability of those claims remains very much in play. measures in building blocks 2, 3, and 4 would not be components
41. See West Virginia Pet., supra note 25. Although §307(b)(1) requires peti- of the system of emission reduction, but instead would serve as bases
tions for judicial review to be filed within 60 days after the action for which for quantifying the reduction in emissions resulting from the reduc-
review is sought, it includes an exception if the grounds for review arise after tion in generation at affected EGUs. In light of the available sources
that deadline. In such cases, review must be sought within 60 days of those of replacement generation through the measures in the building
“grounds-arising-after.” blocks, this approach also meets the criteria for being the “best”
42. 42 U.S.C. §7411(a)(1). system because of, among other things, the emission reductions it
43. “Affected entities” include not just the fuel-fired EGU population of each would achieve, its reasonable cost, its promotion of technological
state, but any other enterprise whose actions wind up included as part of any development, as well as the fact that under this approach, the reli-
state’s plan to achieve the assigned emission performance goal. See 79 Fed. ability of the electricity system would be maintained. The approach
Reg. 34830, 34956 (proposed definition of “affected entity”). of reduced generation is also “adequately demonstrated” because of
44. See, e.g., Legal Memo, supra note 1, at 13-14: the ability of affected EGUs to adjust their own generation, the au-
The EPA is proposing two alternative approaches for the “best sys- thority of the state to impose requirements, and the fact that other
tem of emission reduction . . . adequately demonstrated” for fos- entities that operate in the various types of markets in the states
sil fuel-fired EGUs, each of which is based on methods that have can be expected to respond to the reduction in generation from the
[been] employed for reducing emissions of air pollutants, includ- fossil-fuel fired EGUs by undertaking the measures in the building
ing, in some cases, CO2, from these sources. The first identifies blocks or other actions that would assure reliability.
the combination of the four building blocks as the BSER. These 46. 42 U.S.C. §7411(a)(6).Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
2-2015 NEWS & ANALYSIS 45 ELR 10123
This seems rather impossible, given that “states” are source.” In fact, there is not one mention of §111(a)(3) or
wholly distinguished from “stationary sources” in §111: ASARCO anywhere in that memorandum.
The former is regulator, the latter the subject of regulation.
And this state-as-stationary-source construct grinds other 2. “Don’t Use It” Cannot Rightly Be Called the
statutory gears, as well. “The term ‘stationary source’ means “Best System of Emission Reduction”
any building, structure, facility, or installation which emits
or may emit any air pollutant . . . .”47 Yes, in the case that Perhaps the foregoing textual problem is why EPA’s Legal
serves as the very fount of agency discretion to interpret an Memo also attempts another justification for the proposed
ambiguous statute, the Supreme Court upheld EPA’s deci- national energy plan. In this alternative, it is “only” each
sion to impute a plant-wide meaning to the §302(j) defini- state’s population of fuel-fired EGUs that comprise the
tion of “stationary source,” but not even in EPA’s wildest regulated “stationary source,” and the BSER is not to run
Chevron dreams could this definition be read to comprise them. According to EPA, the availability of alternative
an entire state. Besides, the §302(j) definition construed in sources of generation or reduced demand allows the des-
Chevron is broader than the one that governs here, as the ignated facilities to be run less. By how much depends on
Supreme Court then noted: the state’s existing generation mix, and so the BSER (that
The definition of the term “stationary source” in §111(a) is, how little the EGU can be run) varies from state to state.
(3) refers to “any building, structure, facility, or instal- BSER is not statutorily defined, but we know sev-
lation” which emits air pollution. . . . This definition is eral aspects of its meaning from text. First, it stands for
applicable only to the NSPS program by the express terms Emission Reduction, not Production Reduction. Second,
of the statute; the text of the statute does not make this we know that BSER must take into account the costs of
definition applicable to the permit program.48 achieving the reduction. Accordingly, BSER necessarily
carries with it production neutrality. And, as discussed ear-
As for the definition that does govern, in §111(a)(3), lier, it must be “applicable” to an existing stationary source.
EPA has long been deprived of the ability to set plant- We get other indicators from §111 that Congress
wide NSPS, much less state-wide ones. It had tried to do intends a “standard of performance” to reflect only the
so early in the development of the NSPS program, adopt- capability of control technologies that may be applied to
ing for the nonferrous smelting industry an NSPS rule specific emission points at the specific facility under con-
that would not be triggered except by plantwide emission sideration. This is because §111(h)(1) provides the follow-
increases. The Sierra Club challenged that rule as incon- ing exception to setting §111 “standards of performance”
sistent with §111(a)(3).49 In that case, ASARCO, Inc. v. (with emphasis added):
EPA, “Sierra argue[d] that the Act defines a ‘source’ as
an individual facility, as distinguished from a combi- (1) For purposes of this section, if in the judgment of the
nation of facilities such as a plant, and that the bubble Administrator, it is not feasible to prescribe or enforce a
concept must therefore be rejected in toto.”50 And “EPA standard of performance, he may instead promulgate a
respond[ed] that the ‘broad’ statutory definition of sta- design, equipment, work practice, or operational standard,
tionary source gives it ‘discretion’ to define a station- or combination thereof, which reflects the best technologi-
ary source as either a single facility or a combination of cal system of continuous emission reduction which (tak-
facilities.”51 The Agency lost: ing into consideration the cost of achieving such emission
reduction, and any non-air quality health and environ-
We find this response unpersuasive. The regulations mental impact and energy requirements) the Administra-
plainly indicate that EPA has attempted to change the tor determines has been adequately demonstrated.
basic unit to which the NSPSs apply from a single build-
ing, structure, facility, or installation (the unit prescribed So, we know that “operational standards” (which might
in the statute) to a combination of such units. The agency include “use it less” if such a command were otherwise
has no authority to rewrite the statute in this fashion.52 legal) are not “standards of performance,” and so are not
the “best system of emission reduction” as that term is used
So, EPA may not even define the “stationary source” in the definition. Further, the only time “the best techno-
for §111 purposes as an entire plant, much less as an logical system of emissions reduction” can be commanded
entire state. in lieu of “standards of performance” (based on BSER) is
In its 104-page Legal Memo, EPA says not one word for addressing sources of fugitive emissions.53 Section 111,
about how its decision to treat states as “stationary sources”
can be squared with the statute’s definition of “stationary 53. As noted above, §111(h) allows for design, equipment, work practice, or
operational standards only when “it is not feasible to prescribe or enforce a
standard of performance,” a circumstance narrowly drawn to address fugi-
47. 42 U.S.C. §7411(a)(3). tive emission sources:
48. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 858- (2) For the purpose of this subsection, the phrase “not feasible to
59, 24 ELR 20507 (1984). prescribe or enforce a standard of performance” means any situ-
49. See ASARCO, Inc. v. EPA, 578 F.2d 319, 8 ELR 20277 (D.C. Cir. 1978). ation in which the Administrator determines that
50. Id. at 325. (A) a pollutant or pollutants cannot be emitted through a con-
51. Id. at 326. veyance designed and constructed to emit or capture such
52. Id. at 327 (parentheses added for clarity). pollutant, or that any requirement for, or use of, such aCopyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
45 ELR 10124 ENVIRONMENTAL LAW REPORTER 2-2015
in short, contemplates—consistent with typical air qual- reduced utilization, and therefore reduced emissions, from
ity control practice—that NSPS and ESPS shall be point- the higher emitting fossil fuel-fired power plants.57
source-specific emission limitations, except for sources of Shockingly, the Legal Memo’s next sentence avers that
fugitive emissions.54 “[t]his proposed reading is clear as a matter of Chevron step
EPA identifies no relevant precedent for treating “don’t 1 because of the breadth of the term, ‘system,’ in the con-
run that” as the BSER under §111.55 Yet, no matter the text in which it is found.” Were that correct, then EPA
source category, it always has been and forever will be true not only can but must be in the business of deciding how
that not running a source of air pollution will reduce its much power is needed, how it should be generated, and
emissions. Would running it less or not at all then be the how much cost increase can be borne. And were that cor-
BSER for a phosphate fertilizer plant? Or a Kraft pulp mill? rect, then EPA must undertake the same economic plan-
Or any of the other categories for which EPA has developed ning for all NSPS for all industries.
§111(d) guidelines? In fact, given that BSER is the objective All economic endeavors are in their ways as intercon-
of NSPS as well, should EPA not explore “you don’t need nected as electricity generation. Some are obvious, such
to build that” as the BSER when establishing any §111(b) as oil and gas production and petrochemicals, which are
NSPS? Unless EPA is willing to claim that the CAA autho- as interconnected by pipeline as power plants and their
rizes or perhaps even compels the Agency—in the guise of customers are by wire. Does this mean that EPA is autho-
BSER—to prepare Five-Year Plans for all U.S. industries, rized to determine how much natural gas or ethylene each
it cannot defend the notion that the statute authorizes it to state needs to produce? And it does not take a pipe or wire
do so here. to make “systems” out of any economic activity: Is EPA
Although not presented directly in response to concerns authorized to decide that maybe we could pave roads with
that its claim of authority to direct each state’s generation asphalt so we do not need so much concrete and cement,
mix is the slipperiest of slopes, EPA’s Legal Memo does go such that BSER for cement plants is “don’t produce so
on at length about how commanding reductions in gen- much.” Or maybe the Agency prefers concrete to asphalt,
eration at higher emitting plants is justified by the “inter- and would direct the opposite? Is EPA authorized to direct
connected nature” of the nation’s electricity grid: “Central crop rotation so that the nation’s demand for phosphate
to our BSER determination is the fact that the nation’s fertilizer is reduced? Or, even more bold, to tell states they
electricity needs are being met, and have for many decades must do so, as EPA does for the power generation busi-
been met, through a grid formed by a network connect- ness in the ESPS? And what is EPA doing stopping at state
ing groups of EGUs with each other and, ultimately, with lines? The generation system does not stop at state lines,
the end-users of electricity.”56 Elsewhere, EPA opines that but is governed by regional dispatching authorities to one
it can regulate anywhere in this “system”: degree or another across the United States.
Based on these interpretations, for existing sources in the Justice Scalia’s recent opinion on EPA’s authority to direct
electric utility industry, we propose that the term “system best available control technology (BACT) in case-by-case
of emission reduction” is sufficiently broad to include the permitting confirms a judicial willingness to put limits on
measures in building blocks 2, 3, and 4 because they are what the Agency can do under cover of CAA technology-
part of the interconnected electricity sector and result in forcing mechanisms. Although UARG addressed concerns
about BACT rather than BSER, the concepts are similar
conveyance would be inconsistent with any Federal, State, and the issues the same.58 Responding to petitioners who
or local law, or
(B) the application of measurement methodology to a particu-
expressed concern that BACT determinations would be
lar class of sources is not practicable due to technological or used to unduly involve EPA in the nation’s productive
economic limitations. capacity, Justice Scalia responded as follows:
42 U.S.C. §7411(h)(2).
54. EPA’s Legal Memo includes a remarkable analysis purporting to show that [A]ssuming without deciding that BACT may be used to
the distinction between “best system of emission reduction” and “best tech-
nological system of continuous emission reduction” means that BSER does
force some improvements in energy efficiency, there are
not contemplate use of technology. See Legal Memo, supra note 1, at 55- important limitations on BACT that may work to miti-
57. This is absurd: If “BSER” was broad enough to allow for consideration
of end-of-pipe control technology and anything else besides, there would
have been no need to create the exception. EPA knows perfectly well that 57. Id. at 53-54.
the point of these provisions (as amended in 1990) was to allow EPA to 58. EPA makes much of the use of the word “system” in the term “best system of
describe the technology (design, equipment, work practice, or operational emission reduction” to suggest that it may consider entire economic systems
standard) to be used to minimize fugitive emissions when it is not possible as the subject of regulation under the BSER rubric: “The CAA does not de-
(due to lack of capture or measurement) to prescribe a point-source-specific fine the term, ‘system,’ and as a result, that term should be given its ordinary,
numeric emission limitation (“standard of performance”). everyday meaning: ‘a set of things working together as parts of a mechanism
55. The closest EPA comes is a mention of the CAMR, and of its municipal or interconnecting network; a complex whole.’” Legal Memo, supra note
waste combustor (MWC) rules. See Legal Memo, supra note 1, at 63-64. 1, at 36. But the word “system” also appears in the definition of BACT.
The irrelevance of the CAMR was addressed above. See supra note 15 and See CAA §169(3) (“The term ‘best available control technology’ means an
accompanying text. And the MWC rule example could not more clearly emission … which the permitting authority . . . determines is achievable . . .
confirm that the stationary source stops at the fenceline: The only av- through application of . . . systems. . . .”). And so if the Act’s reference to
eraging that the cited MWC rule allows is for nitrogen oxide emissions “systems” reflects an obligation to consider, when setting a technology-based
among individual regulated emission points within the plant. See 40 C.F.R. emission limit, the economic systems in which the subject source operates,
§60.33b(d)(1). then EPA would become obligated to do so not just in setting §111 stan-
56. Legal Memo, supra note 1, at 43. dards, but in making BACT determinations.You can also read
