On Wednesday, 15 Republican governors sent a letter to President Obama voicing their concern over the EPA’s new plan to reduce carbon emissions: Namely, that it is illegal.
In their letter, the governors claim that the agency’s attempt to reduce nationwide carbon emissions by 30 percent is prohibited under the terms of the Clean Air Act (CAA). To wit,
“The unambiguous language of the CAA expressly prohibits EPA from using Section 111(d) to regulate power plants because EPA already regulates these sources under another section of the Act. Moreover, even if the Agency did have legal authority to regulate power plants under 111(d), it overstepped this hypothetical authority when it acted to coerce states to adopt compliance measures that do not reduce emissions at the entities EPA has set out to regulate. Under federal law, EPA has the authority to regulate emissions from specific sources, but that authority does not extend outside the physical boundaries of such sources (i.e., ‘outside the fence’).”
That’s all a bit technical, but it breaks down like this: Section 111(d) is the part of the Clean Air Act that the Environmental Protection Agency used as the basis for its new carbon reduction plan. The governors are arguing that the EPA cannot regulate sources of emissions under both this section and CAA Section 112.
But the CAA’s two sections are meant to be complementary. As ThinkProgress points out, Section 112 outlines the specific pollutants that the CAA can regulate and Section 111(d) regulates any pollutants that 112 doesn’t mention – which includes carbon dioxide, according to both the EPA and the Supreme Court.
The governors also complain that the EPA is overextending itself by trying to regulate carbon emissions from more than just specific sources (e.g. power plants). This is going “outside the fence.” However, the EPA has successfully used the CAA to regulate “outside the fence” emissions before – with nitrogen oxide in 1995 and mercury in 2005.
The strange part is, by going “outside the fence,” the EPA is offering states more methods of reducing their carbon pollution than just regulating emissions from power plants. This gives states – especially those that rely so heavily on coal power – a variety of options to meet the EPA’s proposed guidelines.