EPA’s GHG Rule: The Really Big Picture View


As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post on some aspects of it in coming days, if I can figure out a blog-efficient way to do so. Today, I’d like to focus on the big picture.

What do we know about EPA regulation of GHG?

• The Supreme Court has told EPA that greenhouse gases are, collectively, a pollutant under the Clean Air Act. That’s a fact.

• EPA has not just the authority, but the obligation, to regulate emissions of GHG. That may be a truth not quite so universally acknowledged, but I think it’s pretty clear.

• Use of market approaches, such as cap-and-trade, and energy efficiency programs are the most cost-effective way to obtain carbon emissions reductions. That’s pretty much a fact.

All of which seems to beg the question why anyone would be opposed to this rule. Of course, it also begs the question why legislation hasn’t already been enacted to put EPA carbon regulation on firmer and more practical footing. I think we know the answers to both these questions.

I’ll leave you with one final question for today. Given that EPA has authority, and probably the obligation, to regulate, and given that the rule is certainly more cost-effective than less flexible alternatives, might there actually be standing problems for at least some potential plaintiffs? In Coalition for Responsible Regulation v. EPA, the D.C. Circuit ruled that no one had standing to challenge EPA’s Tailoring Rule for the same reason – EPA had to regulate and the alternative to EPA’s approach would have been even worse for the challengers. I realize that the issues are slightly different here, but I certainly expect EPA to make the argument.



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