Too Early, Too Late, Too Lame: Three Strikes Against the Latest Legal Attack on EPA's Clean Power Plan

At the end of a week of hearings where thousands of Americans showed their support for the Environmental Protection Agency’ proposed limits on dangerous carbon pollution from the nation’s power plants, 12 state attorneys-general filed a far-fetched lawsuit against the agency.  The AGs will have to be satisfied with a little filing-day publicity, because that’s all their suit, West Virginia v. US EPA, is going to get them. 

The AGs’ lawsuit has at least three fatal defects that will cause the U.S. Court of Appeals for the District of Columbia Circuit to dismiss it in the judicial equivalent of a heartbeat.  Let’s look at them one by one.

Too Early

The first defect in the AGs’ lawsuit is that they have sued before EPA has issued the final standards, which are not due until June 1, 2015, under the schedule set by President Obama in his Climate Action Plan and his accompanying memo on power plants.  It is well-settled law that the courts review only final actions.  They don’t review proposals. 

We’ve seen this movie before.  In 2012, a handful of would-be coal-plant developers attacked EPA’s proposed standards for new plants.  The Court of Appeals dismissed the case, Las Brisas Energy Center v. EPA, in a one-paragraph order, succinctly ruling:  “The challenged proposed rule is not final agency action subject to judicial review.” 

Too Late

The AGs know the pickle they’d be in if they openly challenged another proposal, and so they have styled their lawsuit as a challenge to a 2011 settlement agreement in a case called New York v. EPA.  But there are three problems here:  First, the settlement is a red herring, because its deadlines passed unmet years ago; what governs now is a schedule established by the President.  Second, a settlement agreement is even less a final action than a proposed rule.  And third, even if it were final action, the AGs’ challenge to it comes way too late. 

Some background:  In 2006, New York and others (including NRDC) challenged the Bush-era EPA’s refusal to curb power plant carbon pollution under Section 111 of the Clean Air Act.  The Court of Appeals put the New York case on ice while the Supreme Court considered a similar case concerning carbon pollution from motor vehicles.  In its landmark decision, Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that carbon dioxide is indeed an air pollutant subject to curbs under the Clean Air Act.  The Court of Appeals then sent both cases back to EPA for new decisions. 

EPA moved forward on vehicles under the Obama administration, but did nothing on power plants.  So in 2010, New York and the other petitioners told EPA they’d go back to the Court of Appeals if the agency did not act.  Rather than face the unwelcome task of explaining its continued inaction to the court, EPA agreed to a schedule for proposing and taking final action on both new and existing power plants under Section 111(b) and (d). 

Subsequently, the settlement faded away into historical irrelevance.  EPA failed to meet its deadlines, even after several agreed extensions.  The petitioners did not invoke their only remedy, to go back to court in the original New York case.  As noted already, EPA is acting now on a schedule set by the President.   

But even if the settlement agreement were behind EPA’s current actions, it would be far too late for the AGs to challenge it.  The AGs had their chance to object when EPA published the proposed settlement in the Federal Register in December 2010.  Section 113(g) of the Act required publication of the proposed settlement and gave any member of the public at least 30 days to argue to EPA or the court that it would be “inappropriate, improper, inadequate, or inconsistent” with any requirements of the Clean Air Act.  This is when the AGs could have stepped in.  But they didn’t show up.  It’s too late now to challenge the settlement.

(Footnote for those who want to chase rabbits down rabbit holes:  The AGs claim that an exception allows them to raise their objections far after the proper time.  But the exception doesn’t remotely apply.  For one thing, the exception is found in another section of the law pertaining to challenges to final actions.  A settlement on a schedule for future rulemaking is even farther from a final action than a proposed rule.  So the exception that sometimes allows late challenges to final actions creates no basis for a late hit on a settlement agreement.  In any event, the late-hit exception requires something utterly missing here:  the late challenger has to show that he couldn’t have raised his objection when the alleged final action (here, the settlement agreement) took place, and that something has changed that creates a grievance he could not have raised earlier.  The AGs claim that “something” was EPA’s issuance of mercury standards under Section 112 in 2012, which they now claim bars EPA from regulating carbon pollution under Section 111(d).  But the mercury standards were no surprise.  Everyone knew they were coming when the Section 111 settlement agreement was open for public review.  The AGs said nothing.)

Too Lame

It comes down to this lame argument:  The AGs claim the 1990 Clean Air Act Amendments prohibit EPA from regulating existing power plants’ carbon dioxide emissions under Section 111(d) because EPA has regulated existing power plants’ mercury emissions under Section 112.  As my colleague Ben Longstreth and I have shown, this is just grasping at straws.  No court is going to buy the argument that regulating power plants’ hazardous emissions extinguished EPA's authority to curb their carbon pollution. In fact, the Supreme Court has already determined that EPA may regulate carbon pollution from existing power plants in American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011).

You can find the full response to the AGs’ argument here.  To summarize, everyone agrees that Congress wrote Section 111(d) in 1970 to fill a gap.  It provides authority to curb existing sources’ emissions of any dangerous pollutants that are not covered by two other provisions – Section 110 (covering six “criteria” air pollutants, such as those that form soot and smog) and Section 112 (covering “hazardous air pollutants,” such as those that cause cancer).  The wise drafters of the Clean Air Act foresaw that existing industrial sources would emit air pollutants that endanger public health and welfare, but that did not fall under those two sections.  Thus, Section 111(d) directed the Administrator to “establish emission standards for any existing source for any air pollutant (i) . . . which is not included on a list published under section 108(a) or 112(b)(1)(A) but (ii) to which a standard of performance under subsection (b) would apply if such existing source were a new source.”

In 1990 Congress made extensive changes to the hazardous air pollution section and, in the process, deleted the specific subsection that the pre-1990 Section 111(d) had referenced (Section 112(b)(1)(A)). To fix this, the drafters in the House and Senate each made conforming amendments to Section 111(d) so that it no longer referred to the deleted portion of the hazardous air pollutant section.

Here’s where things get a bit unusual.  Normally, the House and Senate conferees reconcile the different versions into one final bill.  In this case, the conferees inadvertently included both of the duplicative amendments at different pages of the final statute, Pub. L. 101-549.  Only the House version appears in the U.S. Code, the reference book of convenience for our federal statutes.  But the Supreme Court has made clear that it is the Statutes at Large, not the U.S. Code, that govern. U.S. Nat’l Bank of Oregon v. Independent Ins. Agents of Am., 508 U.S. 439, 488 (1993).  So both provisions are the law of the land. 

And fairly read, each one focuses on the pollutant.   Each one says that if a pollutant from existing industrial sources endangers health or welfare, but is not covered by Section 110 or Section 112, then Section 111(d) is there to fill the gap. 

Even if one could read the House provision, standing alone, the way the AGs would wish, then it would conflict with the Senate provision, and both are in the final law.  If they genuinely conflicted, the law would be ambiguous, and under the Supreme Court’s governing case, Chevron v. NRDC, 467 U.S. 837 (1984), it would be EPA’s job to adopt a reasonable interpretation.  This EPA has already done, holding that carbon pollution standards under Section 111(d) are not blocked by the mercury standard under Section 112. 

The D.C. Circuit will not buy the AGs’ lame 111/112 argument, even when it comes before the court in a proper case brought after EPA issues final carbon pollution standards.  And neither will the Supreme Court.


In short, the AGs are too early, too late, and too lame.  It’s too early to bring a proper case against the standards.  It’s too late to object to the settlement agreement (which is moot anyway).  And their central argument about Section 111 and 112 hasn’t a chance of succeeding. 

But they did get a little press coverage. . .