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A Ghost from the Past: How a Congressional Miscue 25 Years Ago Could Impact Defense of EPA’s Clean Power Plan

CO2Last month, President Obama’s EPA finalized the agency’s Clean Power Plan, the regulatory initiative to establish first-time restrictions on greenhouse gas (carbon dioxide – CO2) emissions from existing fossil-fueled power plants. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662 (October 23, 2015). As expected, a number of court challenges were filed the same day (although EPA Administrator Gina McCarthy signed the Clean Power Plan on August 3rd, Federal Register publication on October 23rd was the trigger for seeking judicial review).

 Earlier this year the Northwest Land Law Forum reported on some of the more prominent opposition to the Clean Power Plan, noting that a key legal issue concerns section 111(d) of the Clean Air Act. Here’s the backstory (in abbreviated form): When section 111(d) was last modified by Congress in 1990, the Senate and House approved different and somewhat conflicting versions of the statute, and both versions comprise the legislation signed by President George H.W. Bush and recorded in the U.S. Statutes at Large. While the Senate version prevents EPA from regulating a particular pollutant under section 111(d) if the same pollutant is already regulated under another section of the Act, the House version prevents regulation of a source category under section 111(d) if the source category is otherwise regulated under CAA section 112. In the Clean Power Plan, EPA reconciles those internal inconsistencies in a manner that authorizes the agency to regulate CO2 emissions from existing fossil-fueled power plants under section 111(d) even though that source category is also regulated – for pollutants other than CO2 – under section 112.

To be sure, interpretation of section 111(d)’s disparate threads was expected to be addressed by the courts in the appellate proceedings challenging the Clean Power Plan. But recent developments could prompt rethinking that scenario (or, as ESPN’s Lee Corso would say, “Not so fast, my friend”). That is because actions underway in the House of Representatives could recodify section 111(d) in a manner that would preserve the 1990 House version of the statute, which is strongly preferred by stakeholders challenging the Clean Power Plan, and jettison the Senate version that EPA prefers. This involves the generally not well-known Office of the Law Revision Counsel (OLRC), a nonpartisan office under the authority of the Speaker of the House. As noted on the OLRC’s website, its primary responsibilities include revising “one title at a time” the general and permanent laws of the United States to “conform [] to the understood policy, intent, and purpose of Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections both of substance and of form.” That tedious task is described in technical legislative jargon as enacting “positive law” titles of the U.S. Code (about half of the 50-plus titles that comprise the U.S. Code are awaiting enactment as positive law). See

The OLRC’s proposal for “positive law” recodification of the Clean Air Act (together with several other environmental laws) is contained in H.R. 2834, which is currently under consideration in the House of Representatives. Although the OLRC’s recodification work is normally non-controversial and non-partisan, that has not been the case with H.R. 2834. Without getting too “deep in the weeds” in complicated legislative history, suffice it to say that the OLRC has concluded that the Senate version of section 111(d) should not have been enacted as part of the Clean Air Act Amendments of 1990, Public Law 101-549, and for that reason the positive law codification proposed in H.R. 2834 reflects the 1990 House version – and only that version – of section 111(d). This has become a contentious matter, with the Chairman of the House Energy and Commerce Committee (Fred Upton, R-Michigan) suggesting in a November 2 letter to EPA Administrator McCarthy that the agency is trying to prevent the OLRC’s proposed recodification of section 111(d) because “EPA has used the obsolete language in the Statutes at Large to create an argument that it actually had authority to promulgate section 111(d) regulations for CO2 emissions from power plants.”  On the other hand, the Ranking Democrat on the same House committee, Frank Pallone (D-New Jersey), cautions that H.R. 2834 “goes beyond merely codifying existing statutes and instead makes substantive changes to provisions of law [i.e., section 111(d) of the Clean Air Act] within the jurisdiction of the Committee on Energy and Commerce.” In addition, various environmental organizations describe H.R. 2834 as “a thinly veiled attempt to block the Obama Administration’s signature climate change initiative, the Clean Power Plan.”

While the legislative miscue that resulted in enactment of two versions of Clean Air Act section 111(d) in 1990 is, fortunately, a rare occurrence, that does not diminish the fact that events 25 years ago have significant present day implications given the importance of section 111(d) to EPA’s Clean Power Plan. While predicting the outcome of the labyrinth of issues surrounding section 111(d) and the Clean Power Plan would be highly speculative, those issues have significant implications for federal regulation of greenhouse gas emissions, and how they progress in the coming months will be well worth monitoring.

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