CPR's Victor Flatt Submits Comments on EPA's Rule to Curb Greenhouse Gas Emissions

Erin Kesler

Dec. 1, 2014

Today is the deadline for comments from the public on EPA's proposed rule to limit carbon emission from existing power plants.

CPR Member Scholar and University of North Carolina School of Law professor Victor Flatt submitted a comment on the rule.

According to his comments:

What I would like to focus on is suggesting that the agency definitively interpret Section 111(d) to allow states to utilize a greenhouse gas market reduction strategy that allows greenhouse gas reductions to come from any source.

Section 111(d) specifies that the Best System of Emissions Reduction adopted by a state be modeled on the CAA’s section 110, which governs the State Implementation Plans (SIPS).  While the EPA has not had cause to consider the direct meaning of this before, I believe that it means that 111(d) provides a hybrid sort of emissions reduction based on proposed emissions reduction at the source, as contemplated by Section 111(b), but also extreme flexibility and state autonomy in selecting such reductions as contemplated for states meeting the NAAQS limits as required by Section 110.  The EPA appears to support this interpretation in the body and text of the proposed rule by indicating at several junctures that the states do not have to use the four building blocks in order to meet their target reductions, and that the state can use “any” program that meets the targets, including trading systems in existing programs, such as California’s AB32.  Despite this apparent overall flexibility in the rulemaking itself, the technical support documents and the rulemaking itself in several places seem to forbid the possibility of true flexibility in reducing GHGs by noting that reductions must come from the “affected units.” 

To read his comments in full click here.

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