Last March, a young Federal law clerk in Washington, D.C. named William J. Haun wrote a paper for the conservative leaning Federalist Society. In it he argued that the U.S. Environmental Protection Agency can’t adopt its planned climate rule for existing power plants. A few months later (and without seeing Mr. Haun’s analysis), I made the same assertion in an article I wrote for the Yale Journal on Regulation. Our papers ruffled some serious feathers: numerous environmental groups immediately bashed our conclusion as “unfounded,” and twelve state attorneys general filed comments with EPA arguing that Mr. Haun and I are wrong.
While this might seem like an esoteric legal question, it has far-reaching implications. Existing power plants emit about a third of this country’s greenhouse gases. EPA’s power plant rule is the centerpiece of President Obama’s Climate Action Plan.
So who’s right?
I don’t know Mr. Haun, but you should know up front that I’m not a “climate denier.” I think the temperature is increasing, mankind’s greenhouse gas emissions are at least partly (and likely significantly) to blame, and Congress should pass meaningful climate change legislation. But as a lawyer, my job is to read and interpret the law; my own personal beliefs are irrelevant; and in this case, I think EPA is on very shaky legal ground.
Because Congress hasn’t passed any climate legislation, the agency is stuck using the decades old Clean Air Act as it authority for its power plant rule. Specifically, EPA wants to use an obscure and rarely used part of the Act, section 111(d).
The problem is that Congress screwed up when this section was last amended. They accidently signed two different versions of the provision into law: the first version allows the EPA to regulate greenhouse gases from existing power plants — and the second version does not, but it’s this second version that controls.
Here’s how it happened.
Back in 1990, the Democrats held majorities in both the House and Senate. The Senate passed a large set of Clean Air Act amendments first (including revisions to section 111(d)). The House then passed its own set of similar, albeit different, amendments a month later.
Ironically, two long-time supporters of climate change legislation, Representatives Henry Waxman (D-Cal) and John Dingell (D-Mich), were instrumental in pushing the Clean Air Act amendments through the House. And both were – in Mr. Waxman’s own words – the “key members” of the conference committee that convened to merge the different House and Senate bills into the final Clean Air Act text.
That’s where things went wrong.
The conference committee’s job was to take the separate House and Senate bills and turn them into one bill that the House, Senate and President could sign. But Mr. Waxman and Mr. Dingell’s committee inadvertently forgot to harmonize the House and Senate language in section 111(d). Both were then signed into law.
The difference between the revisions is subtle, but important. The Senate’s revision says EPA can adopt rules for any non-toxic pollutant. Since greenhouse gases aren’t toxic (i.e., breathing them doesn’t make you sick), the Senate’s language allows EPA’s planned power plant rule. The House revision, on the other hand, says EPA can only adopt rules for categories of sources (like power plants) whose toxic emissions EPA doesn’t already regulate. Because EPA already regulates mercury emissions from existing power plants, the House language doesn’t give EPA the authority it wants.
While this situation is certainly unusual, it’s not unique. In such situations, courts generally try to read the provisions together (since they are both technically the law), and here, the provisions aren’t mutually exclusive, so that’s possible. EPA could, for example, use section 111(d) to regulate a non-toxic pollutant from a currently unregulated category of sources (like small factories, shopping centers, etc). That means a court would likely assume that both the House and Senate revisions are the law, which would be the death knell for EPA’s power plant rule.
Of course, courts also look at Congressional intent when interpreting statutes, and the top state attorneys and environmental groups are arguing that Congress could never have intended this result. They say the House’s revision was just poorly worded, and wasn’t supposed to be different from the Senate’s. This argument, however, lacks evidentiary support. I’ve reviewed the entire legislative history and there is nothing that supports this claim or sheds any light on which revision Congress actually wanted to pass.
Nonetheless, EPA seems to be plowing forward. Based on the agency’s 2015 fiscal budget, the only other significant climate rule that EPA is planning to issue before Obama leaves office is for big trucks (a relatively minor emissions source). When asked about regulating other emission sources like factories and farms, EPA Administrator Gina McCarthy told reporters earlier this month that power plants are “where my focus is and will be.”
In other words, Ms. McCarthy is betting all of her chips that Mr. Haun and I are wrong. Personally, I hope she’s right. But I wouldn’t bet the climate on it.
Photo Credit: EPA Regulation Authority/shutterstock