Archived Projects: Clean Air Act

This page lists some of the Center’s older projects exploring how the U.S. Environmental Protection Agency can use the Clean Air Act to regulate greenhouse gas emissions. For more recent projects, click here.

Will Greenhouse Gas Rules Permit New Coal Power Plants? Ethan I. Strell and Christine A. Fazio, New York Law Journal (October 2013)

On September 21, 2013, the EPA issued a revised proposed rule that would limit carbon dioxide (CO2) emissions from new fossil fuel-fired power plants.  The re-proposal was intended to address concerns about the first proposal from last year, which was widely viewed as prohibiting in practice any new coal power plants from being built in the United States.  However, the re-proposal, like the first proposal, is receiving significant criticism by industry and elected officials in states that depend on coal, because new coal plants will not be able to meet the proposed limits unless they install costly and commercially untested carbon capture and storage technology.

Encouraging Energy Efficiency through the Clean Air Act, Moneen Nasmith (April 2013)

This paper examines the ways that the Clean Air Act can be used to promote energy efficiency. It describes how advocates can participate in various actions under the CAA, as well as challenge final agency decisions that reflect insufficient consideration of the issue of energy efficiency and conservation. It includes discussion of the inclusion of energy efficiency in state implementation plans (“SIPs”), and opportunities for considering energy efficiency in permitting decisions and technology-based standards.

Compliance Flexibility under Section 111, Gregory E. Wannier, Jason A. Schwartz, Nathan Richardson, Michael A. Livermore, Michael Gerrard, and Dallas Burtraw (July 2011)

In 2011, Sabin Center partnered with the Institute for Policy Integrity at New York University School of Law and Resources for the Future to produce a report that synthesized and analyzed the existing literature on how carbon regulation under Section 111 might proceed. The final product, Prevailing Academic View on Compliance Flexibility under §111 of the Clean Air Act, presents the six authors’ best sense of the prevailing view of academics on what is and is not permissible within 111 guidelines. An Executive Summary was provided to the EPA.

What’s Ahead for Power Plants and Industry? Using the Clean Air Act to Reduce Greenhouse Gas Emissions, Building on Existing Regional Programs, Franz T. Litz, Nicholas M. Bianco, Michael B. Gerrard, and Gregory E. Wannier (February 2011)

Written jointly by the World Resources Institute and the Sabin Center for Climate Change Law, this 2011 report asserts that cap and trade regulations are legally defensible under Section 111 of the Clean Air Act, and details options for implementing potential cap and trade regimes through federal-state partnerships.  It particularly examines the legal viability of certain existing flexibility mechanisms in existing state and regional programs.  Issues discussed include: how categories are defined and whether emissions could be netted across multiple infrastructure types; whether the Act allows credit for carbon offsets achieved outside of the regulated categories; whether regional programs allowing for international allowance trading could survive; whether allowances could be borrowed and/or banked across multiple compliance periods; and what degree of cost-containment mechanisms such as caps on carbon prices would be valid.

Tailoring Rule Effect on State Thresholds, Caitlin Peale (2010)

EPA’s finalized “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (Tailoring Rule) would phase in Prevention of Significant Deterioration (PSD) and Title V requirements for certain stationary sources of greenhouse gases (GHGs). The initial phases of the Tailoring Rule would effectively shift existing Clean Air Act statutory thresholds of 100 or 250 tons per year to 75,000 or 100,000 tons per year. This poses a potential problem for states, many of which have enshrined Title V and PSD language, including the 100/250 tons per year threshold, into their own statutes and regulations.

This 2010 project identifies states that have written the 100/250 threshold into their statutes, regulations, or both. Each state is color-coded to distinguish between those that have approved SIPs and those with delegated or partially delegated authority to implement EPA’s New Source Review provisions. Beige highlighting indicates that the 100/250 thresholds are written into the state’s statute; blue highlighting indicates that the 100/250 thresholds are written into the state’s regulations. Citations to the relevant statute or regulation are provided. This analysis found that 36 of the 38 states with approved SIPs have the 100/250 thresholds written into their statutes, regulations or both.

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