Project
In the absence of Congressional legislation specifically addressing climate change, regulation of greenhouse gases (GHGs) in the federal government has fallen to the Environmental Protection Agency (EPA). Thus far, EPA has administered permitting systems under the Clean Air Act (CAA) to regulate mobile sources as well as major new or modified sources of GHGs. EPA has also announced its intention to propose New Source Performance Standards (NSPS) under Section 111 of the CAA (§111), which would apply to both new/modified and existing major stationary sources of GHGs. The draft regulations for power plants would be issued in July 2011, with final regulations to follow by May 2012.
§111 performance standards, like much of the CAA, are designed and promulgated through a federal-state partnership. Under §111(d) EPA is authorized to approve a minimum federal "backstop" for regulations, and then allow other states to control GHG emissions above and beyond that backstop. Put another way, there is an opportunity under §111 for EPA to engage proactively with states to ensure that GHG reductions are achieved in the most efficient and effective manner possible. However, to achieve these efficiencies EPA will necessarily address several novel questions in CAA regulation. Such questions centered on the degree to which EPA can legally authorize existing state and regional systems as satisfying basic §111 requirements.
Several institutions have written analyses of what may or may not be possible under the auspices of §111, all of which are linked to in full below. This project was a joint effort to synthesize the existing literature into one full set of conclusions. The final product presents the six authors' best sense of the prevailing view of academics on what is and is not permissible within 111 guidelines, and involved authors from:
- The Center for Climate Change Law at Columbia Law School;
- Institute for Policy Integrity at New York University School of Law; and
- Resources for the Future
The final paper is available here
The final letter to EPA is available here
Resources
Center for Climate Change Law, Columbia Law School / World Resources Institute
What’s Ahead for Power Plants and Industry? Using the Clean Air Act to Reduce Greenhouse Gas Emissions, Building on Existing Regional Programs by Franz T. Litz, Nicholas M. Bianco, Michael B. Gerrard, and Gregory E. Wannier
Written jointly by the World Resources Institute and the Center for Climate Change Law, this report asserts that cap and trade regulations are legally defensible under Section 111 of the Clean Air Act, and details options for implementing potential cap and trade regimes through federal-state partnerships. It particularly examines the legal viability of certain existing flexibility mechanisms in existing state and regional programs. Issues discussed include: how categories are defined and whether emissions could be netted across multiple infrastructure types; whether the Act allows credit for carbon offsets achieved outside of the regulated categories; whether regional programs allowing for international allowance trading could survive; whether allowances could be borrowed and/or banked across multiple compliance periods; and what degree of cost-containment mechanisms such as caps on carbon prices would be valid.
Congressional Research Service
Climate Change: Potential Regulation of Stationary Greenhouse Gas Sources Under the Clean Air Act by Larry Parker and James E. McCarthy
"This report discusses EPA’s authority to control GHG emissions from stationary sources under the Act, and the various options that EPA could exercise. Of these, perhaps the strongest basis for establishing a traditional regulatory approach would be Section 111 of the CAA, which provides authority to set New Source Performance Standards and, under Section 111(d), requires the states to control emissions from existing sources of the same pollutants. Other sections of the Act, not previously used, might provide authority to establish a cap-and-trade system for GHG emissions."
Environmental Protection Agency
Listening Sessions on Greenhouse Gas Standards for Fossil Fuel Fired Power Plants and Petroleum Refineries
EPA held a series of five listening sessions that engaged industry, environmental NGO, and other interested parties to help them plan Section 111 regulations. All of these sessions were recorded live, and three of them are available already. The website for these meetings includes information about the participants as well as what was said during those sessions.
Institute for Policy Integrity, New York University School of Law
The Road Ahead: EPA's Options and Obligations for Regulating Greenhouse Gases by Inimai M. Chettiar and Jason A Schwartz
The authors of this report "look into the labyrinthine structure of the Clean Air Act to identify EPA’s obligations under the law and the variety of regulatory options available to the agency. They examine how both required and optional regulatory actions would interact with a legislative cap‐and‐trade system—the most likely candidate for congressional approval. They also examine how closely EPA could approximate a cap‐and‐trade system using only the regulatory tools in the Clean Air Act. Importantly, they find that the broad powers given to EPA by the Act allow the agency to construct a very close approximation of an economy‐wide cap‐and‐trade system, with a few small but important caveats."
Nicholas Institute for Environmental Policy Solutions, Duke University
Avoiding the Glorious Mess: A Sensible Approach to Climate Change and the Clean Air Act by Jonas Monast, Tim Profeta, and David Cooley
"In March 2010, the Nicholas Institute for Environmental Policy Solutions at Duke University, the Duke University School of Law, and the Center for Law, the Environment, Adaptation, and Resources (CLEAR) at the University of North Carolina School of Law convened many of the nation’s legal experts on the Clean Air Act for an event in Durham, North Carolina, to examine the options for regulating GHGs under the Act. This report builds upon some of the ideas discussed at that meeting and described in recent publications, with the goal of identifying a viable approach to GHG regulation through the current Clean Air Act in the event that Congress does not act on comprehensive climate legislation."
Pew Center on Global Climate Change
GHG New Source Performance Standards for the Power Sector: Options for EPA and the States
"The Pew Center prepared this document to inform EPA’s development of greenhouse gas standards for fossil fuel-fired power plants (Docket ID: EPA-HQ-OAR-2011-0090). This document discusses how EPA might allow for and states might pursue market-oriented approaches to reducing greenhouse gas emissions from power plants under Section 111(d) of the Clean Air Act. The Pew Center prepared this document in consultation with representatives of business and nongovernmental organizations; however, this document is solely a product of the Pew Center and does not represent a consensus position of any coalition or group."
Resources for the Future
Greenhouse Gas Regulation Under the Clean Air Act: Structure, Effects, and Implications of a Knowable Pathway by Nathan Richardson, Art Fraas, and Dallas Burtraw
“The steps EPA will take as it moves to regulate mobile source emissions are relatively well understood. Substantial uncertainty remains, however, over how EPA will use its CAA authority to regulate stationary sources—the power plants and industrial facilities responsible for the majority of U.S. GHG emissions; particularly existing, unmodified sources . . . This Article attempts to resolve some of that uncertainty by analyzing a set of plausible pathways EPA may use to regulate stationary-source GHG emissions under the CAA. Section III describes each of these pathways, and Section IV offers evidence that points to one program in particular, the new source performance standards (NSPS), as the most likely, predictable, and practical vehicle for CAA regulation of GHGs. In short, the NSPS are the knowable pathway for regulation of GHGs under the CAA.”
Greenhouse Gas Regulation Under the Clean Air Act: A Guide for Economists by Nathan Richardson, Art Fraas, and Dallas Burtraw
This is an updated work with further discussion on the ESPS pathway. It includes significant if preliminary economic analysis of a tradable performance standard (aka compliance flexibility) and areas for further economic research.
Georgetown Climate Center
EPA’s Forthcoming Performance Standards for Regulating Greenhouse Gas Pollution from Power Plants (Clean Air Act Section 111)
This brief "provides background information about [CAA section 111] and existing regulations and raises issues that states may want to consider in evaluating EPA's proposal. States should look to the proposed rule for more information, as EPA's approach to the regulations remains to be seen."
Any questions about the project or content of this site should be directed to Adam Riedel at adam.riedel@law.columbia.edu.