NOT SO GREEN  |  Not so Happy

By steven d keeler | Feb 11, 2016
Source: White House

 

The decision also suggests that a majority of the court has concerns about the EPA’s authority to impose the CPP under the Clean Air Act. The CPP, whatever its policy merits, is based on a fairly aggressive reading of the relevant provisions of the Clean Air Act, most notably Section 111. Even some liberal scholars, such as Harvard’s Laurence Tribe, have raised questions about the EPA’s authority here. (Tribe is also an attorney on one of the stay applications filed with the court.)

There are serious legal arguments against specific elements of the CPP (such as the consideration of potential emission reductions to be achieved “outside the fence” of regulated facilities) as well as the position that Section 111 of the CAA allows the EPA to regulate greenhouse gases from power plants in the first place. The latter concerns raise the stakes of the case and strengthen the argument for a stay. This is because the question at issue is not merely whether the EPA observed the relevant procedural niceties or properly exercised its authority on the margin. Rather, the question is whether the EPA has the authority to do this at all.

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