In many respects, EPA is stuck between a rock and a hard place. They’ve been given a short timeframe to draft regulatory language based on a Clean Air Act provision that Congress never expressly intended to address climate change. Whatever the regulation ultimately says, litigation is all but a forgone conclusion.
Proponents of a system-based approach are expected to bring suit challenging a BSER determination grounded in a source-based model. As mentioned above, the line of reasoning maintains that a system-based approach provides greater carbon emission reductions at lower economic costs. Therefore, the argument claims, EPA’s selection of a source-based model is arbitrary and capricious because it does not amount to the best system of emission reduction.
Opponents of a system-based approach are expected to challenge a BSER determination grounded in a system-based model. As briefly mentioned above, they will argue that, absent express Congressional authorization, EPA regulatory discretion should be narrowly interpreted. Therefore, the argument goes, EPA’s adoption of a system-based model must be struck down because its not authorized by the Clean Air Act. For EPA, the presence of these divergent stakeholders all but guarantees a series of appellate litigation in the near future.
Despite this complex and divisive backdrop, President Obama is moving forward—without Congress—on climate change by regulating existing coal-fired power plants across the United States. The burden of drafting these regulations falls on 59-year-old Joseph Goffman, Senior Counsel in EPA’s Office of Air and Radiation. Goffman, a well-regarded veteran of the Clean Air Act, is known for his rare knack of teaching old laws new tricks. In some sense, President Obama’s climate change legacy hinges on Goffman drafting airtight regulations. While EPA is expected to issue proposed regulations by June 1, 2014, their ultimate design and practical effect remains to be seen. In the meantime, stakeholders from both sides of the political spectrum are gearing up to challenge EPA’s carbon regulations. So, although for now it’s too early to call the game, one thing’s all but certain—it’s looking like extra innings.
Tags: climate action plan, coal-fired power plants, EPA regulations
