Yesterday, Greenwire reported about speculation regarding what impact EPA’s proposed New Source Performance Standards for greenhouses gases would have on potential regulation of existing sources. As Greenwire noted, while EPA sought to downplay the impact of the NSPS on regulation of existing sources, both environmentalists and industry representatives think that regulation of existing sources is pretty much inevitable. 

My favorite bit from the story is that OMB apparently deleted the following language from EPA’s proposal:

At a future date, EPA intends to promulgate emission guidelines for states to develop plans reducing CO2 emissions from existing fossil-fuel-fired" power plants.

I suppose that that statement would qualify as what lawyers call dicta, since, strictly speaking, it’s not a necessary part of the NSPS proposal. Nonetheless, there’s dicta, and then there’s really good dicta. Put this statement in the latter category. It may be that EPA will simply wait until after election to issue regulations for existing sources. It may be that EPA will wait to get sued. What seems clear is that, absent congressional action, EPA has a statutory duty to promulgate rules for GHG emissions from existing sources under § 111. 

As I noted last month in commenting on the NSPS proposal, cap-and-trade legislation never looked so good.