With the fate of the Environmental Protection Agency’s carbon emissions standards for existing coal-fired power plants in the hands of the courts, some have suggested the EPA could tackle carbon regulation under Section 115 of the Clean Air Act if its new rule is struck down. However, that strategy could prove legally risky, Nathan Richardson, a visiting fellow with Resources for the Future, said in a discussion paper released Wednesday.
Section 115 of the Clean Air Act is tailored to address international pollution and could be used to put in place a nationwide market-based mechanism for carbon such as cap and trade or a carbon tax. But the section might not be the solution advocates are looking for, according to Richardson. “A court considering the inevitable legal challenge to §115 regulation might deem it a legal ‘mousehole’ that Congress could not have intended to carry the weight of the climate policy ‘elephant,’ or it might rule that §115 is limited to ‘conventional’ pollutants rather than extending to carbon,” he wrote.
According to Richardson, in the case of a Section 115 regulation of carbon, a court could decide simply that Congress did not intend that provision of the Clean Air Act to be applied to nontraditional pollutants such as carbon. “These legal risks may not individually be obviously fatal or even a dire threat, but taken together they are significant. This is likely the primary reason why EPA has to date avoided regulating under §115 in favor of other sections of the statute,” Richardson wrote.