In Defense of the Clean Power Plan: Why Greenhouse Gas Regulation Under Clean Air Act Section 111(d) Need Not, and Should Not, Stop at the Fenceline

Abstract

In the summer of 2014, the Supreme Court heard a challenge to the Environmental Protection Agency’s first-ever Clean Air Act regulation of greenhouse gases from “major” stationary sources like power plants and factories. In Utility Air Regulatory Group v. Environmental Protection Agency, the Court struck down the agency’s special definition of “major” sources for greenhouse gases and removed its broader authority to require permits based solely on greenhouse gas emissions. The Court thus limited the agency’s jurisdiction to sources that already require permits for conventional air pollutants—a category accounting for nearly all emissions the agency sought to regulate. Hence, the case hardly affected the agency’s new permitting program, but the Court’s reasoning raised a concern that may have broader implications. Writing for the majority, Justice Antonin Scalia voiced fears of regulatory overreach into the lives of common citizens engaged in innocuous behavior, proclaiming any regulation that could apply to owners of small, nonindustrial sources would face skepticism from the Court. These regulatory overreach concerns may arise again in a legal challenge to the agency’s largest greenhouse gas rule to date: a program to reduce energy sector emissions by 30 percent by 2030 known as the “Clean Power Plan.” After the Court’s decision, many commentators have asked whether the Clean Power Plan’s approach of regulating states’ energy sectors as a whole, including operations that take place “beyond the fenceline” of individual plants, will survive judicial review. Indeed, much of the debate over the Clean