CPR Archive for William Buzbee

Federalism Games in the Clean Power Plan Battle

by William Buzbee | September 23, 2016

Next Tuesday, the U.S. Court of Appeals for the D.C. Circuit will hear four hours of argument over the Clean Power Plan (CPP). Federalism-linked statutory, regulatory, and doctrinal law has been and will be crucial to the CPP's fate, and several issues of federalism will play a key role.

In designing the CPP, the U.S. Environmental Protection Agency built on states' actions in reducing greenhouse gas (GHG) emissions in recent years through use of GHG trading regimes, and nudging or requiring power plants to produce energy through cleaner or renewable sources. The CPP's core requirements – capped pollution targets for each state – are built on EPA's assessment of what "best system[s] of emission reduction" have been "adequately demonstrated," and derives the targets from that assessment.

States were able to make such progress during recent decades due both to their longstanding powers to regulate retail energy markets and the Clean Air Act's explicit "saving" of state authority to take regulatory actions in addition to and more stringent than federal regulation. Because of this, some members of the court will no doubt ask about EPA's authority to build the CPP's emissions targets on these past state accomplishments. 

The Plan's challengers disagree that EPA has such authority. Most have been pushing the "inside the fenceline" argument, claiming that the key Clean Air Act provision – Section 111(d) – requires EPA to look at "demonstrated" emissions reductions strategies on a facility-by-facility basis, while ...

The New Final 'Waters of the United States' Rule: Separating Rhetoric and Reality

by William Buzbee | June 03, 2015
William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.”  Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform.  He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme ...

EPA’s Proposed Power Plant Regs: Solid Legal Footing, Considerable Flexibility

by William Buzbee | June 03, 2014
On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants.  And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals.  In an earlier blog analysis, I assessed the statutory language and how ...

Regulating Existing Power Plants Under Clean Air Act 111(d) (Part I): The CAA's Language & Structure

by William Buzbee | October 15, 2013
In late September, the EPA proposed regulation of new power plants’ greenhouse gas emissions (GHGs) under the Clean Air Act’s “New Source Performance Standards” (NSPS) provisions. Now an often little noticed follow-on provision—Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows.  This issue presents several important choices and ...

The Ongoing Waters War: Understanding the Firestorm Over US EPA’s Massive Draft Report and New Army Corps and EPA Proposed Rule on Connectivity of America’s Waters

by William Buzbee | October 01, 2013
On September 17th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding “connectivity” of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes.   It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as “waters of the United States” subject to federal jurisdiction under the Clean Water ...

How the LA County Flood Control District MS4 Case SCOTUS Loss is a Win for the Clean Water Act

by William Buzbee | January 08, 2013
The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) “municipal separate storm sewer system” (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed.   A loss for the environment? Actually, the careful and narrow Supreme Court ruling ...

Williamson v. Mazda: Sound and Clear Preemption Decision

by William Buzbee | February 23, 2011
The Supreme Court today issued its much-awaited ruling in Williamson v. Mazda. Could an injured or deceased plaintiff sue under common law for damages allegedly attributable to the lack of a rear inner seat seatbelt, when the Department of Transportation (DOT) had declined to require such belts while requiring other seat belts?   The case on its face appeared much like the Court’s earlier Geier v. American Honda Motor Co decision, issued in 2000, in which the Court held that a common ...

Climate Legislation Federalism Choices: Reflections After Murkowski, Brown and in Anticipation of the Forthcoming Kerry-Graham-Lieberman Bill

by William Buzbee | April 01, 2010
Federalism battles over state roles under federal climate legislation may have appeared settled, but they are once again under debate. The previous leading bills–the Waxman-Markey bill passed by the House, and the Boxer-Kerry bill passed out of a committee in the Senate–lost momentum several months ago. After several months of legislative inaction, Senators Kerry, Graham, and Lieberman have been working on a new piece of climate legislation. After the senators’ comments indicated that this bill might broadly undercut state and ...

Boxer-Kerry: Measures to Address Error and Illegality

by William Buzbee | October 05, 2009
This post is the fourth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30 The Boxer-Kerry bill released on September 30, 2009 is yet another massive piece of proposed legislation. And it is likely to get even larger as details are added regarding distribution of pollution allowances, and as other gaps and shortcomings are addressed. Its basic architecture and enforcement provisions, however, give us a good feel for the ...

Waxman-Markey: Federalism Battles

by William Buzbee | April 10, 2009
On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a "discussion draft" of the American Clean Energy and Security Act of 2009 -- a climate change bill that will serve as the starting point for long-delayed congressional action on the world's most pressing environmental program. CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page Waxman-Markey bill. This entry, by William Buzbee, examines if ...

The Supreme Court's Decision on Standing in Summers vs. Earth Island Institute

by William Buzbee | March 10, 2009
On March 3rd, the Supreme Court issued its much awaited decision in Summers v. Earth Island Institute.  This was the latest in a series of cases dating to the early 1990s where the central question has concerned citizen standing: will the courts allow a citizen to stand before a court to argue that government or private action violates the law?   In Summers, the environmentalists' challenge involved a few layers. The real legal challenge raised by the environmentalists was to ...

Also from William Buzbee

William W. Buzbee is a Professor of Law at Georgetown University Law Center.

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