The Texas Public Policy Foundation partnered with Pacific Legal Foundation to file an amicus brief in the pending case against the Environmental Protection Agency's (“EPA”) Clean Power Plan. On October 23, 2015, the EPA promulgated the Clean Power Plan, which regulates carbon dioxide emissions from existing power plants under section 111(d) of the Clean Air Act (“Clean Air Act” or the “Act”). See 42 U.S.C. § 7411(d); 80 Fed. Reg. 64,661 (Oct. 23, 2015).
For three reasons, EPA’s Clean Power Plan violates the Clean Air Act.
First, if EPA is to regulate carbon dioxide emissions from stationary sources, EPA must proceed under Section 108 of the Act and not under Section 111.
Second, the Act does not permit EPA to regulate emissions from stationary sources under Section 111 when emissions from such sources are already regulated under Section 112.
Third, EPA failed to make a proper endangerment finding, which is a prerequisite to regulating emissions from any stationary source category under Section 111.
In addition to its illegality under the Act, the Clean Power Plan is unconstitutional. The Act does not authorize EPA to regulate the system of power generation within each state, let alone require states to do what it cannot do itself. Accordingly, the Clean Power Plan unconstitutionally usurps state powers in violation of the Tenth Amendment.