Environmental Economics: "Prevailing Academic View on Compliance Flexibility under § 111 of the CAA"

July 18, 2011

"Prevailing Academic View on Compliance Flexibility under § 111 of the CAA"

From the inbox (paraphrasing to make it sound like I have already read the discussion paper*):

EPA will soon propose its first rules for GHG emissions from existing stationary sources – performance standards for fossil fuel power plants – in September. RFF, along with legal academics at NYU and Columbia, have written an open letter (see below) to Lisa Jackson (EPA) and Cass Sunstein (OMB). In the letter they present the prevailing view among legal academics that EPA has the authority under the Clean Air Act to allow and encourage compliance flexibility (that is, trading and/or other market-based mechanisms) in these rules. They lay out where there is general (if not universal) agreement and where no consensus exists, such as over whether EPA can include offsets in its rules, and whether flexibility can be made available to new sources.

The goal is partly to embolden the agency to seriously consider including flexible options in its proposal, both for the associated cost savings and because doing so could justify more stringent environmental goals. ... There appear to be areas of substantial agreement in the legal community that the wider policy community may not be aware of. Confusion between the relatively broad authority for flexibility here and constraints imposed by courts on similar authority under other parts of the statute (the DC circuit’s rejection of CAIR in North Carolina v. EPA) is a particular concern. And even where agreement does not exist, communicating current legal thinking is important.

Here is the abstract of RFF Discussion Paper 11-29:

EPA will soon propose performance standards under Section 111 of the Clean Air Act for greenhouse gas pollution from the two largest emitting stationary source sectors—fossil-fueled power plants and petroleum refineries. The form these standards will take remains unclear. A key issue that will shape the effectiveness of the regulations is the degree to which they enable regulated entities to use flexible approaches to achieve the standards. This discussion paper provides the content of a letter to EPA Administrator Jackson that describes areas of general academic agreement on the EPA‟s authority to use compliance flexibility options under Section 111 of the Clean Air Act in the development of performance standards for greenhouse gas emissions.

Here is the link to the paper.

*Note: it is printing.

Posted by John Whitehead on July 18, 2011 at 08:04 AM in Air Quality | Permalink

Comments

From the inbox (paraphrasing to make it sound like I have already read the discussion paper*):

EPA will soon propose its first rules for GHG emissions from existing stationary sources – performance standards for fossil fuel power plants – in September. RFF, along with legal academics at NYU and Columbia, have written an open letter (see below) to Lisa Jackson (EPA) and Cass Sunstein (OMB). In the letter they present the prevailing view among legal academics that EPA has the authority under the Clean Air Act to allow and encourage compliance flexibility (that is, trading and/or other market-based mechanisms) in these rules. They lay out where there is general (if not universal) agreement and where no consensus exists, such as over whether EPA can include offsets in its rules, and whether flexibility can be made available to new sources.

The goal is partly to embolden the agency to seriously consider including flexible options in its proposal, both for the associated cost savings and because doing so could justify more stringent environmental goals. ... There appear to be areas of substantial agreement in the legal community that the wider policy community may not be aware of. Confusion between the relatively broad authority for flexibility here and constraints imposed by courts on similar authority under other parts of the statute (the DC circuit’s rejection of CAIR in North Carolina v. EPA) is a particular concern. And even where agreement does not exist, communicating current legal thinking is important.

Here is the abstract of RFF Discussion Paper 11-29:

EPA will soon propose performance standards under Section 111 of the Clean Air Act for greenhouse gas pollution from the two largest emitting stationary source sectors—fossil-fueled power plants and petroleum refineries. The form these standards will take remains unclear. A key issue that will shape the effectiveness of the regulations is the degree to which they enable regulated entities to use flexible approaches to achieve the standards. This discussion paper provides the content of a letter to EPA Administrator Jackson that describes areas of general academic agreement on the EPA‟s authority to use compliance flexibility options under Section 111 of the Clean Air Act in the development of performance standards for greenhouse gas emissions.

Here is the link to the paper.

*Note: it is printing.