ELP and Clean Air Act Regulation of Greenhouse Gases

In 2007, the United States Supreme Court ruled that greenhouse gases (GHGs) are “air pollutants” under the Clean Air Act, setting the stage for regulation by EPA. Since that decision, EPA has:

  • partnered with the Department of Transportation to issue new fuel efficiency standards for cars and trucks;
  • issued rules addressing GHG permitting requirements for large industrial and commercial facilities; and
  • proposed the Clean Power Plan that will reduce GHG emissions from the electricity sector.

ELP faculty and students have been involved at each step, and continue to work on these issues. ELP’s full list of publications about GHG regulation under the Clean Air Act includes an amicus brief filed in the Supreme Court, two briefs filed in the D.C. Circuit, a paper cited by EPA in its Clean Power Plan proposal, and an op-ed published in the New York Times.

Since the final rule’s release on August 3, 2015, ELP is providing ongoing legal analysis:

The Supreme Court’s 2007 decision in Massachusetts v. EPA established that EPA has authority to regulate GHGs under the Clean Air Act. Professor Richard Lazarus was co-counsel for the Petitioners for one stage of the proceedings.Following the decision, EPA’s first regulation targeted GHGs from mobile sources. In collaboration with the Department of Transportation, in an historic deal negotiated with states and the auto industry, EPA set GHG standards for light-duty vehicles. Professor Jody Freeman, as Counselor for Energy and Climate Change to the President, was the agreement’s architect. Once an air pollutant is “subject to regulation” under any part of the Clean Air Act, new or modified major stationary sources must apply the Best Available Control Technology to limit that pollutant. In litigation over the scope of stationary sources subject to GHG permitting, the Emmett Environmental Law & Policy Clinic submitted an amicus brief, authored by Professor Wendy Jacobs, Clinical Instructor Shaun Goho, and clinical student William Cranch (JD ’15), on behalf of Calpine Corp., a Fortune 500 power generation company, to describe and defend EPA’s GHG permitting regime. Solicitor General Don Verrilli cited the Clinic’s brief during oral argument before the Court, and the Court’s opinion quoted the Clinic’s brief. In an article published shortly after the decision, Professor Lazarus summarized the case and looked forward to current debate about EPA’s Clean Power Plan.

ELP’s Clean Power Plan Research

At the start of President Obama’s second term, Professor Lazarus wrote a piece in the Harvard Law Review Forum proposing an array of ideas for executive action to combat climate change. In June 2013, President Obama announced the Administration’s climate change plan which included some of those proposals.In June 2014, the EPA proposed the Clean Power Plan to reduce CO2 emissions from existing power plants. Authorized by Section 111(d) of the Clean Air Act, the proposed rule sets carbon intensity targets for each State’s power plant fleet to meet in 2030. Shortly before the proposal was published, Professor Jody Freeman penned an op-ed in the New York Times previewing the legal debates that will determine the fate of EPA’s proposal. Professors Freeman and Lazarus joined forces to discuss EPA’s Clean Power Plan at the Harvard University Center for the Environment, before a packed audience in October 2014. Later, they engaged in an online debate with Professor Tribe, who argued that the proposed Clean Power Plan is unconstitutional.

The Environmental Policy Initiative (EPI) has focused on one of the threshold questions about the Clean Power Plan: whether EPA has the authority at all to regulate GHGs from existing power plants. The confusion stems from a failure to reconcile amendments in the text of the 1990 Clean Air Act Amendments. Kate Konschnik has written a blog post and a working paper laying out the arguments for why EPA has authority to regulate GHGs from existing power plants. In addition, Kate was the counsel of record on an amicus brief submitted by Professors Freeman and Lazarus to the Court of Appeals for the D.C. Circuit.

Meanwhile, EPI is looking down the road to state compliance with a final Clean Power Plan. Following the publication of the final rule, EPI published a primer that highlights responsibilities that states have under the Clean Power Plan and provides an overview of basic plan design choices. Kate Konschnik and Aladdine Joroff (Clinic) also published a paper that explains states can design multi-state compliance strategies that do not require additional Congressional consent.

Just before EPA published the Clean Power Plan proposal, Ari Peskoe and Kate wrote a paper promoting the use of energy efficiency (EE) as a basis for setting the state emission targets, and as a method for compliance. EPA cited to this paper in the proposal. EPI has submitted as comments to EPA an Energy Efficiency Evaluation Tool, which states and stakeholders can use to evaluate an EE program for inclusion in a state compliance plan. Ari and Kate have presented on energy efficiency and the Clean Air Act to states, industry, and energy efficiency advocates. They’ve also written a paper exploring different pathways to compliance with the Clean Power Plan, using four states as case studies: Arizona, Pennsylvania, Florida, and Illinois.

ELP Documents on Clean Air Act Regulation of GHGs

Amicus Briefs



Comments to EPA on the Clean Power Plan

Blog Posts

EPI Talks

    • National Conference of Regulatory Attorneys, Tampa, Florida, June 21, 2016
    • EPA Region 5 ABA Conference, Chicago, Illinois, June 14, 2016
    • Synapse Energy Economics, Cambridge, Massachusetts (webinar), May 26, 2016
    • National Governor’s Association Conference, Annapolis, Maryland, May 5, 2015
    • Harvard Kennedy School, Cambridge, Massachusetts (two-seminar study group), March 30 and April 6, 2016
    • WEST Utilities, Tucson, Arizona, March 22, 2016.
    • National Governors Association, San Jose, California, March 4, 2016
    • Kennedy School Harvard Electricity Policy Group, Cambridge, Massachusetts, February 29, 2016
    • Mid-Atlantic Regional Air Management Association, Philadelphia, Pennsylvania, February 23, 2016
    • ETIP/Harvard Consortium for Energy Policy Research, January 26, 2015
    • WEST Utilities, Cambridge, Massachusetts, November 19, 2015
    • Harvard Law School Markets Workshop, Cambridge, Massachusetts, November 16, 2015
    • Harvard Kennedy School, Cambridge, Massachusetts, October 30, 2015
    • Harvard Kennedy School, Harvard Electricity Policy Group, Seventy-Sixth Plenary Session, October 3, 2014
    • National Governor’s Association, September 3, 2015
    • Midwestern Industrial Energy Productivity Work Group, Des Moines, Iowa, August 20, 2014
    • Synapse Energy Economics, Cambridge, Massachusetts (webinar), August 5, 2015
    • American Constitution Society, Boston, Massachusetts, Boston, Massachusetts, July 29, 2014
    • Practising Law Institute, New York, New York, July 28, 2014
    • Boston Bar Association: Environmental Law Group, Boston, Massachusetts, June 19, 2014
    • Environmental Law Institute, Cambridge, Massachusetts (webinar), April 22, 2014
    • Midwestern Power Sector Collaborative, Minneapolis, Minnesota, April 10, 2014

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