A day after the roll out of the EPA’s proposed greenhouse gas control rule for existing power plants under the CAA, section 111(d), we have the usual complaints from the usual quarters that meeting the requirements will cause wide economic disruption, and that the proposal is not legally consistent with the 111(d) provisions of the CAA. As I stated yesterday in an interview with WFAE (NPR)
I don’t believe that this rule will be economically ruinous by any means. Much of what has been proposed is a path most states are already on.
As for the legality, it is true that we don’t have a lot of precedent for the use of section 111(d), and that the somewhat analogous 111(a) seems to indicate that requirements must be plant specific. This rule is decidedly not plant specific. Though framed in terms of emissions rates for power plants, no actual fossil fueled power plants will meet this requirements (or could) in most of the states. Much of the reduction will come from other methods. I personally think this would be consistent with the discretion given the agency to implement the CAA, and here is an analysis by Professor Bill Buzbee that I agree with. http://progressivereform.org/CPRblog.cfm#
Even more importantly the question remains, however, as to whether the potential state and industry defendants could get standing to challenge this part of the rule. By allowing other methods to meet GHG reductions, the rule can only make achieving those reductions cheaper than requiring the same amount of reduction at individual plant. Given this, where is the actual harm that provides a case and controversy to challenge it? We may be looking at a similar problem that industry plaintiffs faced in trying to challenge the EPA’s greenhouse gas tailoring rule, which only made it easier for industry to meet requirements and therefore there was no harm to challenge.