Exploring the EPA’s New Power Plant Regulations with Professor Jody Freeman and Professor Richard Lazarus

Jody Freeman, Archibald Cox Professor of Law and founding director of the Environmental Law Program at Harvard Law School.
Jody Freeman, Archibald Cox Professor of Law and founding director of the Environmental Law Program at Harvard Law School.

By Samantha Caravello -— October 14 at 12:11 p.m.

[Update: a video of Professor Freeman and Professor Lazarus’s talks at the Harvard University Center for the Environment is available here.]

In June, EPA released a proposed rule for regulating greenhouse gas emissions from existing power plants pursuant to its authority under Section 111(d) of the Clean Air Act (“CAA”). The rule sets forth state-specific goals for emissions reductions but gives states flexibility as to how they will meet those targets. Ultimately, the rule will lead to a 30 percent cut in carbon dioxide emissions (from 2005 levels) by 2030. If implemented, the rule will be a critical component of President Obama’s environmental legacy and a chance to show the world that the United States is serious about climate action. Of course, with this great game-changing power comes great controversy – in fact, twelve states have already sued the EPA over these rules, claiming that the agency lacks authority to regulate greenhouse gases under the 111(d) provision.

This challenge and others will play out over the coming months as the comment period continues and a final rule is ultimately issued, but last week Jody Freeman and Richard Lazarus, professors at Harvard Law School and preeminent legal scholars, gave the Harvard University community a preview of the major arguments that will be made. The talk, “The President’s Efforts to Combat Climate Change Without Congress: What is EPA Proposing to Do and is it Legal?” was sponsored by the Harvard University Center for the Environment, and it was given to a standing-room-only crowd.

Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.
Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.

Professors Freeman and Lazarus gave an overview of the proposed 111(d) rule and of the Supreme Court’s recent history with the CAA and greenhouse gases. Last term, the Court issued two rulings that were largely favorable to EPA’s ability to exercise its authority to regulate global warming pollution under the CAA: EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA (“UARG”). However, the UARG opinion contained what some consider to be “warning shots” to the EPA, signaling the Court’s potential unwillingness to accept the premise that Congress intended to grant the agency broad authority to regulate power plant greenhouse gas emissions, and by extension the nation’s energy sector, with one provision of the CAA, Section 111. After discussing other, threshold, complications with the new rule, Professors Lazarus and Freeman identified this question of EPA’s authority as likely to be the most significant and controversial issue. Section 111 of the CAA gives EPA the authority to create regulations under which states must submit plans that set standards of performance for power plants, with standard of performance defined as based on the best system of emission reduction. Where the potential for legal challenge comes in is that EPA defined “system” broadly, to include “anything” that reduces emissions from the power plants. This makes sense on its face, as a literal reading of the statute, but its practical implications give EPA extremely expansive authority. What will win these challenges, according to Professors Freeman and Lazarus, is really good lawyering—there are arguments on both sides, but it all comes down to convincing five justices, with Justice Kennedy likely providing the key swing vote.

The additional insights into the Supreme Court’s view of EPA’s regulatory authority imparted by Professors Lazarus and Freeman can’t be accurately captured in a short blog post, but Harvard Environmental Law Review readers will soon have the chance to hear their full thoughts on these issues: Both professors will be authoring pieces in ELR’s Fall 2014 issue as part of a series of essays exploring the implications of the UARG decision, including the potential impact on the legality of EPA’s new 111(d) rule. The story of EPA’s 111(d) regulations is just beginning, and ELR and the Harvard environmental law community are fortunate to have world-class environmental scholars Professors Lazarus and Freeman to offer their insights along the way.