By Matthew L. Mattila, J.D.
It’s no secret that the Environmental Protection Agency (EPA) is flexing its muscles under the Clean Air Act, with ever-increasing efforts to regulate pollution. It’s also no secret that industry groups and numerous states have vigorously opposed the regulations. But has a strategy of steady opposition backfired?
EPA opponents just scored a major victory at the U.S. Supreme Court, but it could undermine their larger efforts to undo EPA’s Clean Power Plan.
Following this decision, the future of MATS is now uncertain. The rule could survive, since the Supreme Court did not vacate the rule and merely remanded the case to the D.C. Circuit, which will further evaluate the rule’s fate. In the meantime, until the agency appropriately considers cost, it seems EPA will not effectively be regulating power plants as a source of HAPs under Section 112 of the Clean Air Act.
Unsurprisingly, the Clean Power Plan is contentious because it shows an ambitious regulatory shift in energy policy that threatens to increase utility costs. Here, opponents even took the unusual step of challenging the draft rule prior to its finalization. The D.C. Circuit rejected procedural challenges in June, refusing to consider the legality of a proposed rule and leaving substantive arguments for a future date. EPA is widely expected to finalize the Clean Power Plan this summer and renewed legal challenges are imminent.
With the recent MATS decision, EPA opponents ironically may have undermined their ability to challenge the Clean Power Plan. A major argument against the Plan is that EPA should not be able to regulate carbon pollution at existing power plants under Section 111(d) of the Clean Air Act when the same source is already regulated under Section 112. This argument is based on the statutory text of Section 111 (or at least based on the House of Representatives’ version of the text), but it would be difficult to argue that power plants are sources regulated under Section 112 if MATS is no longer in play. By pushing to invalidate the MATS rule, EPA opponents have therefore made a stronger case for upholding the Clean Power Plan.
If EPA withdraws the MATS rule to further consider cost or if opponents resist potential withdrawal or vacatur of the rule, then this could signal larger uncertainty over the future of the Clean Power Plan. In the meantime, many will be watching, waiting and holding their breath.
Image credit: Flickr/Daniel Lerps
Matthew L. Mattila is an environmental attorney in Atlanta, Georgia and can be reached at email@example.com. This article is for general educational and informational purposes only. This article is not intended as legal advice and should not be construed as such. As always, readers should consult a qualified attorney for legal advice concerning specific situations.