Given the Clean Air Act’s built-in limitations on EPA authority, fears of agency ‘overreach’ are misplaced

This repost is from World Resource Institute’s Franz Litz and Nicholas Bianco.

With climate change legislation stalled in the U.S. Congress, all eyes have turned to the U.S. Environmental Protection Agency for emissions reductions. According to our recent report, Reducing Greenhouse Gas Emissions Using Existing Federal Authorities and State Action, EPA can make significant progress to reduce emissions through implementation of measures under the existing Clean Air Act. Yet the prospect of EPA action has caused some in Congress and industry to express fears that EPA will go too far by imposing unreasonable regulations to reduce greenhouse gas emissions. Given the built-in limitations on EPA authority contained in the Clean Air Act, these fears are misplaced.

Laws Require EPA To Act Reasonably

EPA has no more regulatory authority than Congress has granted it. Congress created the Environmental Protection Agency and legislated the Clean Air Act. Congress has amended the Act multiple times over its 40-year history. In the Clean Air Act, Congress established limitations on EPA‘s regulatory power, requiring it to consider the cost of regulation and its other impacts. Federal courts have, in turn, applied the Constitution to impose a standard of reasonableness on EPA. In other words, EPA is required by law to be reasonable and to act within the bounds Congress established.

Examples of Already Built-in Constraints on EPA: BACT and NSPS

Best Available Control Technology (BACT): The Clean Air Act is replete with restraints on EPA authority. Take, for instance, the permitting requirements that will go into effect on new and modified large power plants and industrial facilities at the start of 2011. The Clean Air Act requires that these new and modified facilities install the Best Available Control Technology (BACT) to control greenhouse gas emissions. In determining what constitutes BACT for a specific facility, the law requires EPA or the delegated state permitting authority to take into account “energy, environmental and economic impacts and other costs.” EPA is expected to release a guidance document detailing how this BACT determination will be made for greenhouse gas emissions. In general, though, BACT determinations could require that a plant maximize its carbon efficiency (e.g., by installing a more efficient turbine) or install a control technology. If the sponsor of a proposed facility believes that the permitting authority has failed to reasonably account for these costs, then the sponsor may appeal the permitting decision and ultimately seek judicial review.

New Source Performance Standards (NSPS): The other provision of the Clean Air Act EPA is expected to rely on to reduce greenhouse gas emissions from large power plants and industrial facilities (section 111 of the Act) likewise constrains EPA‘s regulatory power. Under section 111, EPA establishes New Source Performance Standards for new facilities within specified categories of emission sources such as refineries, cement kilns and power plants. The NSPS requirements must be set based on the “best system of emission reduction” that has been adequately demonstrated in practice, and EPA must “take into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements.” Under subsection (d) of section 111, states regulate existing sources of greenhouse gas emissions, and in so doing they must consider cost, non-air-quality health and environmental impact and energy requirements, as well as the remaining useful life of the existing power plant or industrial source. The current regulation of landfills under section 111 provides an example of how section 111 would work: large landfills must ensure that air emissions of a variety of organic compounds are limited in order to protect public health and prevent fire and explosions. This is typically done through capture and destruction of those compounds.

Federal Court Oversight

Aside from the restraints imposed on EPA by the statutory language of the Clean Air Act, federal courts will review EPA regulatory actions to ensure that the Agency has not exceeded its statutory authority and has not acted arbitrarily or capriciously. Federal courts serve as a check to the Administration’s authority by ensuring that the EPA does not act unreasonably. This reflects the legal reality that EPA has no greater authority than the law vests in the Agency. And while the courts will generally defer to the Agency’s reasonable interpretation of the Clean Air Act, they have also set aside Agency rules when they were found to extend beyond the statutory boundaries established by Congress.

Congress has prescribed specific limitations on EPA‘s authority, and the courts exist to ensure that EPA acts within the boundaries of the law. These limitations on EPA should give policymakers confidence that EPA will, and must, act within its boundaries to protect human health and the environment.

The Tailoring Rule: The Role of Practical Constraints

In addition to the legal constraints on EPA contained in the Clean Air Act and enforced by the federal courts, significant practical constraints operate to ensure that EPA acts reasonably. The recently issued “Tailoring Rule” illustrates the role of practical constraints. EPA decided that it would be unworkable to apply the Clean Air Act to all facilities that could be covered under the law by pre-construction permitting requirements. Citing “administrative necessity,” EPA issued the tailoring rule to limit what facilities will be covered to only very large greenhouse gas emitters such as new and modified power plants and industrial facilities. Thus, practical constraints led to more reasonable action by EPA, and small businesses, like the proverbial “Mom & Pop grocery”, remain unaffected by the regulations.

Given the constraints on EPA‘s authority already built into the Clean Air Act, the role of the courts to ensure that EPA operates within these constraints, based on previous experience of regulations, and the practical realities of regulating greenhouse gases, we can expect EPA to proceed in a reasonable fashion.

– Franz Litz leads WRI’s efforts with US states and US federal agencies as they work together and in parallel to develop programs to reduce greenhouse gas emissions.

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3 Responses to Given the Clean Air Act’s built-in limitations on EPA authority, fears of agency ‘overreach’ are misplaced

  1. Jeff Huggins says:

    “Where to Invest”

    (slightly off the immediate topic, but hopefully interesting)

    I woke up this morning to find, on my Comcast page, one of those feature things with pictures called, “Where to Invest”. As it turns out, according to the “ Finance” folks, these are the “10 Companies to Invest In Over the Next Decade”:

    American Electric Power
    American Water Works Company
    Dollar General
    Exxon Mobil
    Kimberly Clark
    General Electric
    Republic Services
    Teva Pharmaceutical Industries
    The Walt Disney Company

    Apparently we have it all wrong here on CP. We should be putting our money INTO ExxonMobil, and INTO American Electric Power, rather than boycotting them. We’ll get great dividends over the coming decade that way, and (according to the invisible hand) somehow help humankind in the process, who knows how, even as we act mainly only on self-interest.

    (Anyhow, this would be a good way to “cash out” the environment.)

    But anyhow, here’s the link (and just to make sure this message is taken correctly, I myself am not providing financial advice, nor am I qualified to do so, nor would I want to do so, nor would I suggest under any circumstances a good number of these particular companies):



  2. Barry says:

    To create a hopeful, enjoyable and thriving future we need to stop shoving our climate into ever-increasing hell and high water. To do that, as Hansen shows, we have to leave most of the fossil fuels we know about in the ground forever.

    The EPA has the ability to push the conversion of our several hundred “big-emitter” power plants to be climate sustainable. EPA must be allowed to protect us from unrestained, dangerous pollution like fossil CO2. We are lucky the EPA is willing and active and able to do this right now.

    Americans probably own a billion pieces of “small-emitter” infrastructure that burn fossil fuel directly. We need to replace these with alternatives that use electricity instead. Can EPA help drive this task as well? What is Obama administration doing on this daunting challenge?

    If you are concerned about climate threats, you should be scrapping your fossil burners and replacing them with electric alternatives. Then pay for the climate-clean electricity to run them. That is what a hopeful future requires.

    It is absolutely necessary to stop burning fossil fuels as quickly as possible. When enough of us do it, it will also become sufficient.

  3. Harold Pierce Jr says:

    ATTN: Barry

    Here is a comment I routinely and frequently post on climate blogs to remind everyone of energy use in the real world.

    RE: Fossil Fuel Are Forever!

    Harold the Chemist says:

    Boats, planes, freight trains and trucks, military and emergency vehicles, heavy machinery used agriculture, construction, forestry and mining, cars and light trucks, recreational vehicles, and so forth will always require and use hydrocarbon fuels because these fuels have high energy density and are readily prepared from abundant crude oil, which exists free in Nature, by fractional distillation and blending of the distillate fraction, low energy processes which do not involve the breaking of chemical bonds. Even catalytic cracking of the heavy distillate fractions into lighter fractions for fuel formulation is a relative low energy process.

    In the heavy industries, only fossil fuels can supply the heat energy and high process temperatures either directy or indirectly (e.g. the electric furnace) required by lime and cement kilns, smelters, steel mills, foundries and metal casting planets, all facilities manufacturing ceramic materials (glass, bricks, tiles, porcelin ware, etc), refineries and chemical plants and so forth.

    Diesel-electrical generating systems are used extensively throughout the world for primary and back-up power and for power generation in many delveloping countries and at remote locations (e.g., diamond and gold mines, resort islands, drilling rigs, movie sets, etc). Electrical generators using gasoline are quite portable and are used for small snd modest power requriments.

    Many processes in food production require large amounts of heat for baking, cooking and steam for sterilization, etc which can provided economically by fossil fuels. Drying of grain for storage requires enormous amounts of heat which can only be provided economically by fossils fuels.

    Energy for space heating especially in cold climates and hot water production and for electricity generation, in particular for refrigeration, communication systems, hospitals and emergency services, is provided most reliably and economically by use of fossil fuels.

    FYI: A Boeing 747 takes off with 346,000 US gallons of fuel for a long intl. flight. At large airports big jet are more numerous that house sparrows. The largeset cruise ship ever built, the Oasis of the Ocean can carry about 6,000 passengers and 2,000 crew members.

    The most wasteful use of energy is diamond mining. Tons of ore are sometimes processed to obtain a few carats of rough diamonds. About 80% of gold production goes to the jewerly industry.

    Who among you wants to tell the ladies, “No more diamonds, gold, silver, platinium, rubies, emeralds, etc for jewerly.” In NYC, they would become outraged, ponce on you, take off their Pradas and pound you into hamburger which they would feed with glee to coyotes in Central Park!

    I don’t want read any more foolish comments about getting rid of fossil fuels. Ain’t ever going to happen.