Clinic Files Amicus Brief on Behalf of Professors Freeman, Lazarus, and Other Environmental Law Scholars

The Clinic filed an amicus brief today in the case White Stallion Energy Ctr., LLC v. U.S. Environmental Protection Agency (D.C. Cir. No. 12-1100), which involves challenges to the Environmental Protection Agency’s landmark regulations governing emissions of hazardous air pollutants, including mercury, from coal-fired power plants.  The Clinic, on behalf of a group of law professors including Professors Freeman and Lazarus, argued that EPA’s regulatory approach was justified by the history and text of the Clean Air Act.

Under section 112(n)(1) of the Clean Air Act, power plants were after 1990 initially exempt from the Act’s hazardous air pollutant (HAP) requirements.  EPA was required to complete a study of the health hazards from power plant HAP emissions and to regulate them only if it found that such regulation of power plants was “appropriate and necessary.”

The amicus brief responds to the Petitioners’ characterization of EPA’s authority to regulate power plants under section 112(n)(1).  In particular, the Petitioners, and their amicus the U.S. Chamber of Commerce, have argued that even after making the “appropriate and necessary” finding called for under section 112(n)(1), EPA must separately determine whether regulation of each specific HAP, and each marginal level of regulation, is “appropriate and necessary.”

The brief argues that section 112(n)(1) does not create an entirely separate regulatory scheme for power plants; instead, the study and “appropriate and necessary” finding are merely thresholds that EPA must cross before regulating power plants like any other source category under section 112.  Moreover, the approach advocated by the Petitioners would create precisely the type of risk-based regulatory scheme that Congress had determined to be ineffective in the rest of the 1990 amendments to section 112.

A copy of the brief is available here.

 

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