Grand Award Winner
Focus: Legal Trends in Electricity
4-Time Winner
8-Time Apex Award Winner
October 2013
Volume 30
Number 3
The MONTHLY journal for Producers, Marketers, Pipelines, Distributors, and End-Users
Obama’s EPA Memorandum Follows the Law,
Does Not Make It
Robert B. McKinstry Jr.
S
ome politicians and pundits have decried President
Obama’s directive calling on the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions
(GHGs) from electric-generating units (EGUs) as an end
run around Congress, an executive usurpation of power,
part of a “war on coal,” and an unwarranted extension of
the Clean Air Act, a law they assert is unsuited to GHG
regulation. Rhetoric aside, a substantial legal rationale supports the president’s commitment.
Other Features
Focus: Legal Trends in Electricity
Litigation—Renewables
Renewables Ruse: Preparing for the Quiet
Campaign Against Renewable Energy
Jim Wedeking................................................... 10
Columns
Regulatory Economics
Rhetoric aside, a substantial legal rationale supports the president’s commitment.
The Presidential Memorandum issued with the President’s
Climate Action Plan1 merely directs the EPA to comply belatedly with existing settlement agreements applying existing
law that was adopted by Congress with overwhelming bipartisan support and that requires the EPA to take the actions the
president directs.
Fracking Opposition Fizzling
Richard A. Barclay........................................... 16
Natural Gas & Electricity Pricing
Natural Gas Could Bring Overseas Jobs Back to
United States
Tanya Bodell.................................................... 19
Energy and the Environment
Keystone Cops (and Robbers)—Canadian
Imports Threatened
Jonathan A. Lesser........................................... 23
Electric Regulation
Time-Differentiated Rates for the Mass Market?
Nicholas S. Bowden......................................... 26
Technology
Robert B. McKinstry Jr. ([email protected]) is a
partner and practice leader, Climate Change and Sustainability
Initiative, for Ballard Spahr LLP.
Smart Grid Experience Leading City
to Eject Utility
R. Kenneth Skinner.......................................... 30
View this newsletter online at wileyonlinelibrary.com
DOI: 10.1002/gas.21714 © 2013 Wiley Pe­ri­od­i­cals, Inc.
Natural Gas & Electricity
Associate Publisher: Robert E. Willett
Executive Editor: Isabelle Cohen-DeAngelis
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Editorial Advisory Board
Kenneth L. Beckman, President
International Gas Consulting, Inc.
Houston
Keith Martin, Esq.
Chadbourne & Parke
Washington, DC
Deborah Carpentier, Esq.
Crowell & Moring LLP
Washington, DC
Rae McQuade, Executive Director
North American Energy Standards
Board
Houston
Christine Hansen, Executive Director
Interstate Oil and Gas, Compact
Commission
Oklahoma City
R. Skip Horvath, President
Natural Gas Supply Association
Washington, DC
Jonathan A. Lesser, President
Continental Economics, Inc.
Albuquerque, NM
2
Robert C. Means,
Energy Policy and Climate
Program
Johns Hopkins University
John E. Olson, Managing Director
Houston Energy Partners,
and Chief Investment Officer,
SMH Capital
Houston
Brian D. O’Neill, Esq.
Van Ness Feldman
Washington, DC
© 2013 Wiley Periodicals, Inc. / DOI 10.1002/gas
Anthony M. Sabino, Esq.
Sabino & Sabino, P.C.
and Professor of Law,
St. John’s University
New York
Donald F. Santa Jr., President
Interstate Natural Gas
Association of America
Washington, DC
Benjamin Schlesinger, President
Schlesinger and Associates, Inc.
Bethesda, MD
Richard G. Smead, Director
Navigant Consulting, Inc.
Houston
William H. Smith Jr., Executive
Director
Organization of MISO States
Des Moines, IA
Natural Gas & electricity
october 2013
Massachusetts v. EPA
This result follows from the EPA having applied sound science to the Clean Air Act in accordance with the Supreme Court’s decision in
Massachusetts v. EPA.2 Massachusetts held that
carbon dioxide and other GHGs are “pollutants” subject to regulation under the Clean Air
Act. The decision also held that the act would
require the EPA to regulate GHG emissions
from cars and trucks (“mobile sources”) under
Section 202 of the Clean Air Act3 if the agency
found, based on its best scientific judgment, that
those emissions “cause, or contribute to, air pollution which may reasonably be anticipated to
endanger public health or welfare.” The Court
held that if GHG emissions met the “endangerment standard” triggering regulation under that
section, the EPA was legally bound to regulate
those emissions unless the EPA could find specific language in the act providing authority to
refuse to regulate.
The Presidential Memorandum issued with the
President’s Climate Action Plan merely directs the
EPA to comply belatedly with existing settlement
agreements.
The Court reversed the EPA’s denial of a
rulemaking petition by states and environmental groups and remanded the matter to the EPA
to consider whether GHG emissions satisfied
that endangerment standard.
This result follows from the EPA having applied
sound science to the Clean Air Act in accordance
with the Supreme Court’s decision.
The Court did not make this determination
in a vacuum. Climate scientists, including the
majority of the scientists on the panel of the National Academy of Sciences that had reviewed
that state of the science for President George W.
Bush, had summarized the science for the Court
in an amicus brief:
Climate Change Science establishes that
there was and is sufficient scientific evioctober 2013
Natural Gas & electricity
dence to enable EPA to make a determination under Section 202 (a)(1) of the
Clean Air Act that greenhouse gas emissions “may reasonably be anticipated to
endanger public health or welfare.” Given
the protective standard of environmental
regulation that Congress codified in Section 202(a)(1), the scientific evidence of
the risks, long time lags, and irreversibility of climate change argue persuasively
for prompt regulatory action to restrain
emissions of greenhouse gases under the
Clean Air Act. (Brief of Amici Curiae
Climate Scientists David Battisti, et al.
in Support of Petitioners, Massachusetts v.
EPA, at 10)
When the EPA, under the Obama administration, fully considered the science, the
agency made the Endangerment Finding, 4
denied a petition to reconsider that finding,5 and promulgated regulations governing
GHG emissions from motor vehicles under
Section 202.6 A panel of the US Court of Appeals for the Washington, DC Circuit unanimously affirmed the finding, the regulations,
and related regulatory actions.7
Legal Implications of the
Endangerment Finding
The implications of the Endangerment
Finding and this science extend beyond mobile
source regulation under Section 202. The precautionary endangerment standard triggering
regulation of mobile sources appears throughout the Clean Air Act (CAA), mandating EPA
regulation of emissions meeting that standard
under many other sections. These include Section 111, under which the president directed
regulation of fossil-fuel-fired EGUs in the Presidential Memorandum.
The implications of the Endangerment Finding and
this science extend beyond mobile source regulation under Section 202.
Following Massachusetts v. EPA, EPA staff
surveyed the implications of making an endangerment finding and regulating GHGs
DOI 10.1002/gas / © 2013 Wiley Periodicals, Inc.
3
as pollutants under Section 202 of the Clean
Air Act, and incorporated that analysis into
an Advance Notice of Proposed Rulemaking
(ANPR). There the EPA invited comment on
the range of issues raised by regulating GHGs
under the Clean Air Act,8 noting that “[s]imilar endangerment language is found in numerous sections of the CAA, including sections 108, 111, 112, 115, 211, 213, 231 and
615.” The following discussion made clear
that, although there were somewhat different
standards triggering regulation in those sections, an endangerment finding could lead to
economywide regulation of GHG emissions.9
An endangerment finding could lead to economywide regulation of GHG emissions.
By the time the ANPR was issued, litigation and rulemaking petitions were pending
that could lead to regulation under several of
those other sections. The ANPR noted that
pending litigation challenged the EPA’s failure to promulgate greenhouse gas emissions
standards for new and existing electricitygenerating units and refineries under Section
111 of the Clean Air Act. Petitions had already been filed under Sections “211, 213,
and 231 to regulate GHG emissions from (1)
fuels and a wide array of mobile sources . . .;
(2) all other types of non-road engines and
equipment . . .; (3) aircraft; and (4) rebuilt
heavy-duty highway engines.”10
Since then, additional petitions have
sought regulation under all remaining Clean
Air Act sections cited in the ANPR. The Center for Biological Diversity (CBD) and 350.
org filed a petition to list greenhouse gases as
criteria pollutants under Section 108 of the
Clean Air Act. That listing would lead to the
establishment of National Ambient Air Quality Standards (NAAQS) for GHGs under
Section 109 of the act, triggering economywide regulation pursuant to state implementation plans (SIPs) promulgated by states and
approved by the EPA under Section 110. 11
The Institute for Policy Integrity (IPI) of the
New York University School of Law filed a
petition 12 seeking to force the EPA to ini4
© 2013 Wiley Periodicals, Inc. / DOI 10.1002/gas
tiate rulemaking to limit GHG emissions
under the following authorities: Section 115
of the act, which requires regulation of international pollution meeting the endangerment standard; Title VI, requiring regulation
of pollution interfering with stratospheric
ozone; Section 111; and Title II.
The IPI contends the EPA should employ market-based cap-and-trade programs.
The IPI contends the EPA should employ
market-based cap-and-trade programs under
the authority cited in the ANPR.
Requirements for Regulation of New
and Existing Utility Units Already Exist
Under Section 111
Even before the president’s direction to
the EPA to regulate GHG emissions from
new and existing EGUs, settlement agreements in lawsuits seeking enforcement of the
EPA’s regulatory obligations required that the
agency establish GHG emissions standards
from both new and existing EGUs and new
and existing refineries. Those agreements
imposed more aggressive schedules than the
Presidential Memorandum.13
Settlement agreements in lawsuits seeking enforcement of the EPA’s regulatory obligations
required that the agency establish GHG emissions standards from both new and existing
EGUs and new and existing refineries.
States, cities, and environmental groups
had challenged the EPA’s failure to regulate GHG emissions when it established new
source performance standards (NSPS) under
Section 111(b) of the Clean Air Act both for
new and modified EGUs and for new and
modified refineries. In the case of EGUs, the
EPA had requested that the Court remand
the EGU NSPS to the agency to allow it to
reconsider its action in light of Massachusetts
v. EPA.14 The EPA granted a petition by environmental groups for reconsideration of the
Natural Gas & electricity
october 2013
emissions standards for refineries while their
challenge to the refinery NSPS was pending.15
The settlement agreements were reached after
the states and environmental groups threatened suit challenging the EPA’s failure to act
on the remand of the utility NSPS and reconsideration of the refinery NSPS.
These settlement agreements became effective only after notice in the Federal Register and the opportunity for public comment.
The original settlement agreement for EGUs
required the EPA to sign proposed NSPS for
GHG emissions from new EGUs under Section 111(b) and emissions guidelines under
Section 111(d) for GHG emissions from existing EGUs by July 26, 2011, and to sign a final
rule by May 26, 2012. The parties amended
the agreement to extend the date for the EPA
to sign a proposed rule to September 30, 2011.
The refinery settlement similarly required the
EPA to propose emissions standards for new
refineries and emissions guidelines for existing
refineries by December 10, 2011, and to sign a
final rule by December 10, 2012.
Despite these deadlines, the EPA has not
proposed any GHG standards for refineries
and has proposed no guidelines for modified
or existing EGUs. Following the announcement of the settlements, the EPA held five
listening sessions and accepted a second set
of pre-rulemaking comments (having already received comments on the ANPR). On
April 13, 2012, the EPA proposed a single
emissions standard for new but not existing
baseload and intermediate-load fossil-fuelfired EGUs (natural gas, oil, and coal) based
on the emissions that could be achieved by
combined-cycle gas-generating units.16 More
than two million additional comments were
filed supporting and opposing that proposal.
More than two million additional comments were
filed supporting and opposing that proposal.
After the EPA missed the Clean Air Act’s
one-year deadline for taking final action on
that proposal, 17 states and several environmental groups notified the EPA of their intent to file suit to compel promulgation of
october 2013
Natural Gas & electricity
the standard, as well as standards and guidelines for modified and existing EGUs.18 The
states and groups took the position that the
one-year deadline created an obligation to
take action. Their opponents took the opposite position, contending that the proposal
became void when the EPA failed to act.19
After the EPA missed the Clean Air Act’s oneyear deadline for taking final action on that proposal, states and several environmental groups
notified the EPA of their intent to file suit.
Role of June 25, 2013, Presidential
Memorandum
The Presidential Memorandum’s directive
that the EPA propose a new emissions standard for new EGUs no later than September
20, 2013, and timely issue a final rule will
avoid litigation over that side issue. 20 The
Presidential Memorandum requires that the
EPA “address carbon pollution from modified, reconstructed, and existing power plants
and build on State efforts to move toward a
cleaner power sector,” directing that the EPA
“issue proposed carbon pollution standards,
regulations, or guidelines, as appropriate, for
modified, reconstructed, and existing power
plants by no later than June 1, 2014,” approximately three years after the deadline in
the settlement agreement. The EPA must finalize those standards by June 1, 2015.
Other requirements in the Presidential
Memorandum largely restate the unique requirements applicable to regulation under
Section 111(d), which has rarely been used.
Under Section 111(b), which has frequently
been used, EPA issues federally enforceable
emissions standards 21 for new and modified
“stationary sources.” By contrast, Section
111(d) calls for a greater role for the states.
Section 111(d) directs the EPA to prescribe
regulations to govern “a procedure similar to
that provided by section 7410” under which
each state must submit to the EPA a plan that
establishes “standards of performance” for
existing sources of certain air pollutants and
provides for the implementation and enforcement of such standards. Under regulations
DOI 10.1002/gas / © 2013 Wiley Periodicals, Inc.
5
adopted in 1975,22 the EPA will promulgate
a “guideline document” setting forth the factors to be considered in establishing standards of performance, states will develop SIPs
establishing standards of performance based
on the guidelines, and EPA will then approve
or disapprove the plan or promulgate a federal implementation plan. 23 This process is
similar to that whereby the EPA reviews SIPs
developed by states to implement NAAQS.
This process is similar to that whereby the EPA
reviews SIPs developed by states to implement
NAAQS.
The Presidential Memorandum incorporates these requirements relating to state participation. To ensure timely reductions that
will assist in meeting the commitment made
at Copenhagen to a 17 percent reduction in
emissions from 2005, the president directs
the EPA to “include in the guidelines addressing existing power plants a requirement that
States submit to EPA the implementation
plans required under section 111(d) of the
Clean Air Act and its implementing regulations by no later than June 30, 2016.” Given
the role of the states, the president directs
that “EPA launch this effort through direct
engagement with States, as they will play a
central role in establishing and implementing standards for existing power plants” and
engage other stakeholders.
The Presidential Memorandum also includes guidance, consistent with the statute,
on factors that the EPA should consider in
developing guidelines both for the structure
of the emissions standards and their stringency. The president directs the agency to
consider costs and cost-effectiveness and to
“develop approaches that allow the use of
market-based instruments, performance standards, and other regulatory flexibilities.” He
further directs the agency to assure that the
standards enable reliance on a range of energy sources and “ensure . . . the continued
provision of reliable and affordable electric
power for consumers and businesses.” The
EPA must also work with “the Department of
6
© 2013 Wiley Periodicals, Inc. / DOI 10.1002/gas
Energy and other Federal and State agencies
to promote the reliable and affordable provision of electric power through the continued development and deployment of cleaner
technologies and by increasing energy efficiency, including through stronger appliance
efficiency standards and other measures.”
The president directs the agency to consider
costs and cost-effectiveness and to “develop
approaches that allow the use of market-based
instruments, performance standards, and other
regulatory flexibilities.”
Issues About Emissions Reductions
Required and Form of Guidelines—Capand-Trade Plans
These directions give only limited guidance
to the EPA regarding the novel issues involving the form of the program to be described by
the guidelines for modified and existing EGUs
and the basis for determining what emissions
reductions can be required, given the unique
properties of the system for delivering wholesale
electricity in the United States. The Clean Air
Act defines “standard of performance” identically for new and existing units as “a standard
for emissions of air pollutants which reflects
the degree of emission limitation achievable
through the application of the best system of
emission reduction which (taking into account
the cost of achieving such reduction and any
nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.”24 Section 111(d) further provides
that, in applying a standard of performance to
any existing source, a state may “take into consideration, among other factors, the remaining
useful life of the existing source.”
Section 111(d)’s reference to Section 110
suggests that Congress contemplated a system
similar to that applied to existing sources by
states in their SIPs to meet NAAQS. Through
SIPs, states apply emissions reduction standards to existing sources on a case-by-case
basis to assure that the states meet air-qualitybased standards. States consider the cost-efNatural Gas & electricity
october 2013
fectiveness of the reductions but may require
that existing sources close. Section 111(d) imposes technology-based standards, using the
same language for new and existing sources,
indicating further that the useful life of facilities may be considered, suggesting that a unit
at the end of its useful or economic life may
be required to meet a standard applicable to
a new unit. In developing technology-based
standards under other sections of the Clean
Air Act and other environmental statutes, a
range of factors have been considered, including add-on technology such as carbon capture
and sequestration, process and efficiency improvements, fuel or raw material switching,
and process modifications.
These directions give only limited guidance to
the EPA regarding the novel issues involving
the form of the program.
The issue is made more complicated by
the nature of the wholesale electricity system, where individual units are not isolated
but act as a part of a system. In wholesale
electricity markets, the regional transmission
system operator must match electricity generation to electricity supply. This matching
is done using a competitive bidding program,
where each unit submits a bid representing
the minimum price it will accept for supplying electricity. As electricity demand increases, the transmission operator will call
on increasingly expensive generation sources
to participate as suppliers, and all suppliers
will be paid the same amount charged by the
participant with the highest minimum bid.
“Demand response” can also be bid into the
system, where parties are paid to reduce their
demand, potentially being paid for conservation or efficiency.
Owners bid their lowest marginal cost of
operation. If any cost is imposed on pollutant
emissions, this increases a supplier’s minimum bid amount and shifts the order of dispatch to other sources of electricity generation (or demand response), so that control of
an individual source may just shift dispatch
to another uncontrolled source. If that unoctober 2013
Natural Gas & electricity
controlled source does not need to pay a cost
for its pollution, there may be no net emissions reduction. If a unit retires, it will not
be replaced by another unit using the same
fuel, but will be replaced by one or more of
the following: a mix of renewable electricity
that generates no creditable emissions (water,
wind, biomass, geothermal, and similar
sources), zero emissions nuclear (including
nuclear updates), energy efficiency and conservation, natural gas–fired generation, and
more efficient or controlled oil- and coalfired generation.
In light of these characteristics, every time
the EPA has developed a program to control
interstate emissions from the electricity generation sector under either Section 111(d) or to reduce interstate emissions to meet NAAQS, the
EPA has prescribed a cap-and-trade program.
When the EPA (unsuccessfully) attempted to
remove EGUs from the list of industries whose
hazardous air pollutants are regulated under
Section 112 and, instead, proposed to regulate
utility emissions under Section 111(d), the
EPA found that a market-based cap-and-trade
program itself represented the “best system of
emission reduction” that has been adequately
demonstrated.25
Every time the EPA has developed a program
to control interstate emissions . . . under either
Section 111(d) or to reduce interstate emissions
to meet NAAQS, the EPA has prescribed a capand-trade program.
The EPA’s proposal to create a cap-andtrade program in the Clean Air Mercury Rule
was endorsed by many of those most likely
to oppose regulation of GHGs from the utility sector as legally sound. Every program to
control interstate air pollution of criteria pollutants emitted by electric-generating units
under the good neighbor provision in Section 110 has, likewise, been a cap-and-trade
program where emissions budgets are based
on the reductions that will be modeled to
occur when EGUs must bear a uniform cost
equal to that required to achieve highly costeffective emissions reductions. 26 State proDOI 10.1002/gas / © 2013 Wiley Periodicals, Inc.
7
grams limiting power-sector GHG emissions
employ a similar system.
The Clean Air Act authorizes cap-and-trade programs.
The Clean Air Act authorizes cap-and-trade
programs. Section 110(a)(2)(A) provides that
all SIPs must “include enforceable emission
limitations and other control measures, means,
or techniques (including economic incentives
such as fees, marketable permits, and auctions
of emissions rights).” The EPA may impose
a federal implementation plan (FIP) where a
state does not submit an adequate SIP, and,
by definition, a FIP may include “enforceable
emission limitations or other control measures,
means or techniques (including economic incentives, such as marketable permits or auctions of emissions allowances).”27 These references to “marketable permits” and “auctions of
emissions allowances” authorize emissions limitations in the form of cap-and-trade programs.
Integration of Federal Guidelines
With Existing State Programs
Under Section 111(d), each state will be
responsible for creating emissions standards
deemed most appropriate for that state. Although SIPs are subject to EPA approval, states
retain significant flexibility, and the EPA will
generally approve SIPs that incorporate standards that are no less stringent than the EPA’s
guidelines. In crafting guidelines for state programs under the Presidential Memorandum,
the EPA will need to consider the guidelines’
impacts on existing state programs.
California, pursuant to the Global Warming Solutions Act,28 and the nine states participating in the Regional Greenhouse Gas
Initiative (RGGI) 29 have established programs to regulate greenhouse gas emissions
from baseload and intermediate-load fossilfuel-fired EGUs. These existing programs
employ a cap-and-trade program.
These existing state programs distribute virtually all emissions allowances by way of an auction with a reserve price,30 with provision for
distribution of additional allowances if allow8
© 2013 Wiley Periodicals, Inc. / DOI 10.1002/gas
ance prices exceed a certain price. Thus, these
systems are based on the price of allowances.
The states use the revenues from the auction to
fund programs for consumer energy efficiency,
the capital costs of alternative electricity generation, and consumer rate relief, programs that
have, in the case of RGGI, generated economic
growth and job creation.31
These states have submitted comments to
the EPA requesting that their programs automatically be deemed to satisfy the EPA’s SIP
approval criteria. As long as the budgets or caps
in these programs are consistent with the caps
that the EPA would establish, it is likely that
the guidelines will make these programs eligible for approval.
In crafting guidelines, the EPA will need
to consider the interstate impacts of potentially inconsistent state programs. There is a
danger that a neighboring state that imposes
only rate-based GHG emission limits (i.e.,
tons per megawatt-hour), without annual
limits on tons of GHG emissions, could undermine the existing state programs. If a state
imposes a rate-based limit without imposing
a cost per ton of GHG emitted and without
capping actual emissions, a fossil-fuel-fired
facility in that state might export emissions
into states with cap-and-trade programs, displacing generation by less-polluting facilities
that must bear the cost of allowances. This
situation could result in net increases in emissions, while also depriving the states with existing programs of auction revenues currently
devoted to investment in energy efficiency
and alternative energy and rate relief.
The EPA will also need to consider the
guidelines’ impacts on existing low- or zeroemission facilities. If a state crafts a program
that does not impose pollution costs that are
borne by the generator and are based on tons of
GHGs emitted, this arrangement could impair
the investments of existing low- and zero-emission generating facilities, which, for the most
part, simply “take” the marginal price of electricity provided by fossil-fuel-fired facilities.
Devoting pollutant auction revenues to new
investment, rather than using a mechanism
such as a renewable portfolio standard, which
transfers costs to consumers rather than pollution generators, will better protect existing
Natural Gas & electricity
october 2013
investments. The statutory charge to consider
the existing life of generation facilities arguably
requires that issues such as this be considered
in crafting guidelines.
Conclusion
In directing the EPA to develop GHG emissions standards for all EGUs, the president is executing the existing law, as constitutionally required. The Clean Air Act was passed by a large
majority each time it was presented to Congress,
and there are insufficient votes to change it.
Thus, the Climate Action Plan and Presidential
Memorandum can be characterized as furthering
democratic and constitutional principles, rather
than the opposite, as claimed by some pundits.
Regardless of what the EPA does, controversy
and litigation will follow.
The EPA must resolve major issues regarding the form of the emissions guidelines it
will adopt for existing and modified EGUs. It
can look to state programs that have a track
record in reducing emissions while generating economic growth. It must be careful not
to impair these programs or existing investment in low- and zero-pollution generating
facilities. Regardless of what the EPA does,
controversy and litigation will follow.
NOTES
1. Presidential Memorandum of June 25, 2013—Power
Sector Carbon Pollution Standards, 77 Fed. Reg. 39,535
(July 1, 2013) (“Presidential Memorandum”).
2. 549 U.S. 497 (2007).
3. 42 U.S.C. § 7521.
4. “Endangerment and Cause or Contribute Findings for
Greenhouse Gases under Section 202(a) of the Clean Air
Act; Final Rule,” 74 Fed. Reg. 66,496 (Dec. 15, 2009)
(“Endangerment Finding”).
5. “Denial of the Petitions to Reconsider the Endangerment and
Cause or Contribute Findings for Greenhouse Gases under
Section 202(a) of the Clean Air Act,” 75 Fed. Reg. 49,556
(Aug. 13, 2010) (“Endangerment Reconsideration”).
6. “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards;
Final Rule,” 75 Fed. Reg. 25,324 (May 7, 2010) (“Mobile Source Rule”).
7. Coalition for Responsible Regulation, Inc. v. U.S. Environmental Protection Agency, 684 F.3d 102, petitions for reh.
en banc denied, 2012 WL 6621785 and 6681996 (D.C.
Cir. 2012), pet. for certiorari filed, No. 12-1146, also
october 2013
Natural Gas & electricity
affirming the Trigger Rule, also known as the Timing
Decision or the Johnson Memorandum Rule, 75 Fed.
Reg. 17,004 (April 2, 2010); and the Tailoring Rule, 75
Fed. Reg. 31,514 (June 3, 2010).
8. Advance Notice of Proposed Rulemaking, Regulating
Greenhouse Gas Emissions Under the Clean Air Act, 73
Fed. Reg. 44,354 (July 30, 2008) (“ANPR”).
9. 73 Fed. Reg. at 44418-19.
10.73 Fed. Reg. at 44,399.
11.CBD & 350.org, Petition to Establish National Pollution Limits for Greenhouse Gases Pursuant to the Clean
Air Act (Dec. 2, 2009).
12.IPI, Petition for Rulemakings and Call for Information
under Section 115, Title VI, Section 111, and Title II of
the Clean Air Act to Regulate Greenhouse Gas Emissions
(Feb. 19, 2013).
13.Notice of Proposed Settlement Agreement; Request for
Public Comment, 75 Fed. Reg. 82,390 (Dec. 30, 2010)
(refineries); Notice of Proposed Settlement Agreement;
Request for Public Comment, 75 Fed. Reg. 82,392
(Dec. 30, 2010) (electric generating units).
14.See State of New York, et al. v. EPA, No. 06-1322 (D.C.
Cir. order Sept. 24, 2007).
15.See American Petroleum Institute, et al. v. EPA, No. 081277 (DC Cir.).
16.77 Fed. Reg. 22,392 (April 13, 2012).
17.42 U.S.C. § 7411(b)(1)(B)
18.See Notices by State of New York, et al. (April 15, 2013);
Environmental Defense Fund et al. (April 17, 2012).
19.See Response of the Utility Air Regulatory Group to Notices
of Intent to Sue Filed by the Environmental Defense Fund,
et al., and the State of New York, et al. (May 16, 2013).
20.Presidential Memorandum, 77 Fed. Reg. at 39,536, § 1.
21.42 U.S.C. § 7411(d)(1).
22.40 C.F.R. Part 60, Subpart B.
23.The Clean Air Act authorizes the EPA to prescribe a plan
for a state if a state fails to submit a plan or submits an
unsatisfactory plan, and to enforce a plan if a state fails
to enforce its plan. 42 U.S.C. § 7411(d)(2).
24.Ibid. § 7411(a)(1).
25.70 Fed. Reg. 28,606, 28,617 (May 18, 2005).
26.These include the NOx SIP Call, 63 Fed. Reg. 57,356 (Oct.
27, 1998) and the Clean Air Interstate Rule, 70 Fed. Reg.
25162.
27.42 U.S.C. §§ 7410(c)(imposition of FIP), 7602(y)(definition of FIP).
28.Cal. Health & Safety Code §§ 38500 et seq.
29.http://www.rggi.org/design/overview.
30.Where states have overestimated the cap, as the RGGI
states did initially, the reserve price acts like an emissions tax. Thus, criticisms that the president’s Climate
Act Plan is a command and control approach are unfounded. See Tepid, timid: The world will one day adopt
a carbon tax—but only after exhausting all the alternatives. (2013, June 29). Economist, p. 14.
31.See The Regional Greenhouse Gas Initiative, Regional Investment of RGGI CO2 Allowance Proceeds, 2011. (2012,
November). Retrieved from http://www.rggi.org/docs/
Documents/2011-Investment-Report.pdf; NESCAUM.
(2013, June 3). REMI economic impact analysis assumptions and results: 91 million ton base case. Retrieved from
http://www.rggi.org/docs/ProgramReview/REMI%20
91%20Cap%20Bank%20MR_2013_06_03.pdf.
DOI 10.1002/gas / © 2013 Wiley Periodicals, Inc.
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