3 strikes for suit against clean power plan


At the end of a week of hearings where thousands of Americans

showed their support for the Environmental Protection Agency's proposed limits

on dangerous carbon pollution from the nation's power plants, 12 state

attorneys-general filed a far-fetched lawsuit against the agency. The AGs

will have to be satisfied with a little filing-day publicity,

because that's all their suit, West Virginia v. US EPA, is going to get them.

The AGs' lawsuit has at least three fatal defects that will

cause the U.S. Court of Appeals for the District of Columbia Circuit to dismiss

it in the judicial equivalent of a heartbeat. Let's look at them one by


Too Early

The first defect in the AGs' lawsuit is that they have sued

before EPA has issued the final standards, which are not due until June 1,

2015, under the schedule set by President Obama in his Climate Action Planand his accompanying memo on power plants.

It is well-settled law that the courts review only final actions. They

don't review proposals.

We've seen this movie before. In 2012, a handful of

would-be coal-plant developers attacked EPA's proposed standards for new

plants. The Court of Appeals dismissed the case, Las Brisas Energy Center v. EPA, in a one-paragraph order, succinctly ruling: "The

challenged proposed rule is not final agency action subject to judicial review."

Too Late

The AGs know the pickle they'd be in if they openly challenged

another proposal, and so they have styled their lawsuit as a challenge to a

2011settlement agreement in a case called New York v. EPA. But there are three problems here: First, the settlement

is a red herring, because its deadlines passed unmet years ago; what governs

now is a schedule established by the President. Second, a settlement

agreement is even less a final action than a proposed rule. And third,

even if it were final action, the AGs' challenge to it comes way too


Some background: In 2006, New York and others (including

NRDC) challenged the Bush-era EPA's refusal to curb power plant carbon

pollution under Section 111 of the Clean Air Act. The Court of Appeals

put theNew York case on ice while the Supreme Court considered a similar case

concerning carbon pollution from motor vehicles. In its

landmark decision, Massachusetts v. EPA, 549 US 497 (2007), the Supreme Court held that carbon dioxide

is indeed an air pollutant subject to curbs under the Clean Air Act. The

Court of Appeals then sent both cases back to EPA for new decisions.

EPA moved forward on vehicles under the Obama administration,

but did nothing on power plants. So in 2010, New York and the other

petitioners told EPA they'd go back to the Court of Appeals if the agency did

not act. Rather than face the unwelcome task of explaining its continued

inaction to the court, EPA agreed to a schedule for proposing and taking final

action on both new and existing power plants under Section 111(b) and


Subsequently, the settlement faded away into historical

irrelevance. EPA failed to meet its deadlines, even after several agreed

extensions. The petitioners did not invoke their only remedy, to go back

to court in the originalNew York case. As noted already, EPA is acting now on a schedule

set by the President.

But even if the settlement agreement were behind EPA's current

actions, it would be far too late for the AGs to challenge it. The AGs

had their chance to object when EPA published the proposed settlement in theFederal Register in December 2010. Section 113(g) of the Act required

publication of the proposed settlement and gave any member of the public at

least 30 days to argue to EPA or the court that it would be "inappropriate,

improper, inadequate, or inconsistent" with any requirements of the Clean

Air Act. This is when the AGs could have stepped in. But they didn't

show up. It's too late now to challenge the settlement.

(Footnote for those who want to chase rabbits down rabbit

holes: The AGs claim that an exception allows them to raise their

objections far after the proper time. But the exception doesn't remotely

apply. For one thing, the exception is found in another section of the

law pertaining to challenges tofinalactions. A settlement on a schedule for future rulemaking is even

farther from a final action than a proposed rule. So the exception that

sometimes allows late challenges to final actions creates no basis for a late

hit on a settlement agreement. In any event, the late-hit exception

requires something utterly missing here: the late challenger has to show

that he couldn't have raised his objection when the alleged final action (here,

the settlement agreement) took place, and that something haschangedthat creates a grievance he could not have raised earlier.

The AGs claim that "something" was EPA's issuance of mercury

standards under Section 112 in 2012, which they now claim bars EPA from

regulating carbon pollution under Section 111(d). But the mercury

standards were no surprise. Everyone knew they were coming when the

Section 111 settlement agreement was open for public review. The AGs said


Too Lame

It comes down to this lame argument: The AGs claim the

1990 Clean Air Act Amendments prohibit EPA from regulating existing power

plants'carbon dioxide emissions under Section 111(d) because EPA has regulated

existing power plants'mercury emissions under Section 112. As my colleague Ben

Longstreth and I have shown, this is just grasping at straws.

No court is going to buy the argument that regulating power plants' hazardous

emissions extinguished EPA's authority to curb their carbon

pollution. In fact, the Supreme Court has already determined that EPA may

regulate carbon pollution from existing power plants in American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011).

You can find the full response to the AGs' argument here. To

summarize, everyone agrees that Congress wrote Section 111(d) in 1970 to fill a

gap. It provides authority to curb existing sources' emissions of any dangerous

pollutants that are not covered by two other provisions – Section 110

(covering six "criteria" air pollutants, such as those that form soot

and smog) and Section 112 (covering "hazardous air pollutants," such

as those that cause cancer). The wise drafters of the Clean Air Act

foresaw that existing industrial sources would emit air pollutants that

endanger public health and welfare, but that did not fall under those two

sections. Thus, Section 111(d) directed the Administrator to "establish

emission standards for any existing source for any air pollutant (i) . . .

which is not included on a list published under section 108(a) or 112(b)(1)(A)

but (ii) to which a standard of performance under subsection (b) would apply if

such existing source were a new source."

In 1990 Congress made extensive changes to the hazardous air

pollution section and, in the process, deleted the specific subsection that the

pre-1990 Section 111(d) had referenced (Section 112(b)(1)(A)). To fix this, the

drafters in the House and Senate each made conforming amendments to Section

111(d) so that it no longer referred to the deleted portion of the hazardous

air pollutant section.

Here's where things get a bit unusual. Normally, the House

and Senate conferees reconcile the different versions into one final

bill. In this case, the conferees inadvertently includedbothof the duplicative amendments at different pages of the final

statute, Pub. L. 101-549.

Only the House version appears in the U.S. Code, the reference book of

convenience for our federal statutes. But the Supreme Court has made

clear that it is the Statutes at Large, not the U.S. Code, that govern. U.S. Nat'l Bank of

Oregon v. Independent Ins. Agents of Am.

, 508 U.S. 439, 488

(1993). Soboth provisions

are the law of the land.

Andfairly read, each one focuses on the pollutant. Each

one says that if a pollutant from existing industrial sources endangers health

or welfare, but is not covered by Section 110 or Section 112, then Section

111(d) is there to fill the gap.

Even if one could read the House provision, standing alone, the

way the AGs would wish, then it would conflict with the Senate provision, and

both are in the final law. If they genuinely conflicted, the law would be

ambiguous, and under the Supreme Court's governing case,Chevron v. NRDC, 467 U.S. 837 (1984), it would be EPA's job to adopt a

reasonable interpretation. This EPA has already done, holding that carbon

pollution standards under Section 111(d) are not blocked by the mercury

standard under Section 112.

The D.C. Circuit will not buy the AGs' lame 111/112 argument,

even when it comes before the court in a proper case brought after EPA issues

final carbon pollution standards. And neither will the Supreme Court.


In short, the AGs are too early, too late, and too lame.

It's too early to bring a proper case against the standards. It's too

late to object to the settlement agreement (which is moot anyway). And

their central argument about Section 111 and 112 hasn't a chance of


But they did get a little press coverage. . .

David Doniger is the director of the Natural Resources Defense Council's Climate and Clean Air Program. He rejoined NRDC in March 2001 after serving for eight years in the Clinton administration, including as director of climate change policy at the U.S. Environmental Protection Agency. This is first stint at NRDC, which began in 1978, Doniger worked on clean air issues for 14 years, helping to win the Montreal Protocol to stop depletion of the ozone layer and the Clean Air Act amendments of 1990. Now he works on efforts to cut the pollution that causes global warming in the U.S., and to reach agreement on global emission cuts.


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