Clean Air Act
In the absence of federal legislation, much of the federal activity on climate change is taking place under the existing authority of the Clean Air Act. This page details the Sabin Center’s research on regulating carbon via that Act and provides links to several useful resources.
Sabin Center Research & Resources
The Environmental Protection Agency is using its Clean Air Act (CAA) authority to regulate mobile sources as well as major new or modified sources of GHGs. One of its major activities is the crafting of greenhouse gas regulations for new and existing major stationary sources under Section 111 of the CAA (§ 111).
Section 111 performance standards, like much of the CAA, are designed and promulgated through a federal-state partnership. Under Section 111(d), EPA is authorized to approve a minimum federal “backstop” for regulations, and then allow states to control GHG emissions above and beyond that backstop. Put another way, there is an opportunity under Section 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 center on the degree to which EPA can legally authorize existing state and regional systems as satisfying basic Section 111 requirements.
In 2011, SCCCL partnered with the Institute for Policy Integrity at New York University School of Law and Resources for the Future to produce a report that synthesizes and analyzes the existing literature on how carbon regulation under Section 111 might proceed.
The final product, Prevailing Academic View on Compliance Flexibility under § 111 of the Clean Air Act, presents the six authors’ best sense of the prevailing view of academics on what is and is not permissible within 111 guidelines. An Executive Summary was provided to the EPA.
As described in a SCCCL blog post, in June 2013 Obama instructed the EPA to expeditiously undertake significant new Section 111 activity. The Center will continue tracking and reporting on EPA’s progress throughout the coming months and years.
The U.S. Conference of Mayors, the National League of Cities, and more than a dozen cities around the nation joined a legal motion to participate as amici curiae ("friends of the court") to join in the defense of the Clean Power Plan. The motion was drafted by Sabin Center Executive Director Michael Burger and filed with the D.C. Circuit Court of Appeals on December 22, 2015.
The Sabin Center submitted comments on EPA's proposed rule to regulate CO2 emissions from existing power plants under Section 111(d) of the Clean Air Act (the "Clean Power Plan"). The comments focus on the role of energy efficiency as a compliance mechaism that utilities and states can used to achieve the required emissions reductions under the proposed rule, highlighting some key uncertainties about the inclusion of energy efficiency in state plans and providing recommendations on how EPA can develop a flexible framework that will allow states to experiment with a variety of different energy efficiency measures when implementing the final rule.
This paper examines the ways that the Clean Air Act can be used to promote energy efficiency. It describes how advocates can participate in various actions under the CAA, as well as challenge final agency decisions that reflect insufficient consideration of the issue of energy efficiency and conservation. It includes discussion of the inclusion of energy efficiency in state implementation plans (“SIPs”), and opportunities for considering energy efficiency in permitting decisions and technology-based standards.
EPA’s finalized “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (Tailoring Rule) would phase in Prevention of Significant Deterioration (PSD) and Title V requirements for certain stationary sources of greenhouse gases (GHGs). The initial phases of the Tailoring Rule would effectively shift existing Clean Air Act statutory thresholds of 100 or 250 tons per year to 75,000 or 100,000 tons per year. This poses a potential problem for states, many of which have enshrined Title V and PSD language, including the 100/250 tons per year threshold, into their own statutes and regulations.
This 2010 project identifies states that have written the 100/250 threshold into their statutes, regulations, or both. Each state is color-coded to distinguish between those that have approved SIPs and those with delegated or partially delegated authority to implement EPA’s New Source Review provisions. Beige highlighting indicates that the 100/250 thresholds are written into the state’s statute; blue highlighting indicates that the 100/250 thresholds are written into the state’s regulations. Citations to the relevant statute or regulation are provided. This analysis found that 36 of the 38 states with approved SIPs have the 100/250 thresholds written into their statutes, regulations or both.
SCCCL would like to acknowledge the work of Caitlin Peale in developing this spreadsheet.
Sabin 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 Sabin Center for Climate Change Law, this 2011 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.
Will Greenhouse Gas Rules Prohibit New Coal Power Plants?
by Ethan I. Strell (Sabin Center) and Christine A. Fazio (Carter, Ledyard & Milburn LLP) (New York Law Journal, October 23, 2013)
On September 21, 2013, the EPA issued a revised proposed rule that would limit carbon dioxide (CO2) emissions from new fossil fuel-fired power plants. The re-proposal was intented to address concerns about the first proposal from last year, which was widely viewed as prohibiting in practice any new coal power plants from being built in the United States. However, the re-proposal, like the first proposal, is receiving significant criticism by industry and elected officials in states that depend on coal, because new coal plants will not be able to meet the proposed limits unless they install costly and commercially untested carbon capture and storage technology.
Alliance to Save Energy and American Council for an Energy-Efficient Economy
Response to EPA: Considerations in the Design of a Program to Reduce Carbon Pollution from Existing Power Plants
The Alliance to Save Energy (Alliance) and American Council for an Energy-Efficient Economy (ACEEE) submitted comments to the EPA regarding regulation of existing power plants under Section 111(d) of the Clean Air Act. The comments urge EPA to prioritize energy efficiency in setting standards for existing power plants. The Alliance and ACEEE promote the adoption of a system-based approach that considers the entire electricity system rather than a source-based approach. The comments urge EPA to allow the flexibility to use “end use” energy efficiency programs and to provide guidance to the states to meet regulatory requirements.
Environmental Defense Fund
The Legal Foundation for Strong, Flexible & Cost-Effective Carbon Pollution Standards for Existing Power Plants by Megan Ceronsky and Tomás Carbonell
In this October 2013 white paper, EDF lays out the legal foundation for EPA’s authority to work with the states to ensure implementation of strong and cost-effective Carbon Pollution Standards for existing power plants. The authors also address critics of current U.S. policy who argue that EPA lacks the authority under the CAA to establish limits on carbon pollution and that, even if EPA did have such authority, any limits it established would have to be “minimal” because there are no demonstrated ways to reduce carbon pollution from power plants.
Nicholas Institute for Environmental Policy Solutions, Duke University
Regulating Carbon Dioxide under Section 111(d) of the Clean Air Act: Options, Limits, and Impacts by Jeremy M. Tarr, Jonas Monast, and Tim Profeta
This document captures key themes, summarizes panel presentations, and highlights points of conversation from an October 2012 workshop on regulating CO2 emissions under Section 111(d) of the Clean Air Act. The workshop, hosted by the Nicholas Institute for Environmental Policy Solutions at Duke University, brought together representatives from electric utilities, state and federal regulators, environmental organizations, law firms, trade groups, and think tanks. Workshop panels focused on (1) policy-design impacts, (2) supply-side and demand-side efficiency, and (3) remaining areas of legal uncertainty. In a final synthesis session, participants discussed the tradeoffs of various policy-design options in terms of environmental benefits, cost, technical feasibility, and legal uncertainty. This document preserves the workshop discussions, identifies tradeoffs facing regulators who draft the existing-source regulations, and notes issues ripe for further exploration.
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.”
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.”
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 [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.”
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.”
Natural Resources Defense Council
Closing the Power Plant Carbon Pollution Loophole: Smart Ways the Clean Air Act Can Clean Up America’s Biggest Climate Polluters by Daniel A. Lashof, Starla Yeh, David Doniger, Sheryl Carter, and Laurie Johnson
"Power plants in the United States released almost 2.4 billion tons of carbon dioxide in 2011, more than any other source of this dangerous heat-trapping pollutant. The Environmental Protection Agency is responsible for setting standards to reduce these emissions. This report describes and analyzes a flexible and highly cost-effective approach to setting power plant carbon pollution standards that would clean up and modernize America’s aging electric power system."
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."
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.
World Resources Institute
Can the U.S. Get There from Here? Using Existing Federal Laws and State Action to Reduce Greenhouse Gas Emissions by Nicholas Bianco, Franz Litz, Kristin Meek, and Rebecca Gasper
"This report examines opportunities to reduce greenhouse gas emissions in the United States through actions taken at the federal and state levels without the need for new legislation from the U.S. Congress. It can serve as a road map for action by providing both a legal and technical analysis of these opportunities."
American Council for an Energy Efficient Economy (ACEEE)
Trailblazing Without the Smog: Incorporating Energy Efficiency into Greenhouse Gas Limits for Existing Power Plants: "On June 25, 2013, President Obama called on the U.S. Environmental Protection Agency (EPA) to propose a rule to regulate greenhouse gases from existing power plants by June 2014. Section 111(d) of the Clean Air Act is likely to be the authority upon which EPA relies to draft the rule. With the drafting of these regulations, a whole host of questions emerge concerning what a greenhouse gas regulatory scheme might look like. One of the most promising opportunities for emission reductions from existing sources is in low-cost end-use energy efficiency. This report makes several recommendations for how a 111(d) rulemaking could be designed so that end-use efficiency plays a role in achieving meaningful greenhouse gas reductions from the power sector."
Any questions about the project or content of this site should be directed to ColumbiaClimate@gmail.com.
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