How Can Multi-State Compliance Programs in State Implementation Plans under Section 110 of the Clean Air Act Inform the Potential Use of Multi-State, Market-Based Mechanisms for Compliance with Section 111 of the Clean Air Act?
Abstract
The Environmental Protection Agency (“EPA”) has committed to regulating greenhouse
gas (“GHG”) emissions from stationary sources under section 111(d) of the Clean Air
Act (“CAA”). There are only a few established regulatory programs under section 111(d)
that EPA can reference as guidance during this process. Furthermore, the courts have
not ruled on whether EPA may authorize the use of multi-state or market-based compliance
mechanisms under section 111(d). However, section 111(d) explains that the regulatory
process in 111(d) should be “similar to that provided by [section] 110.” Many states
use multi-state, market-based compliance mechanisms to meet the requirements of section
110. Three section 110 programs, specifically, the NOx SIP Call, the Regional Haze
program, and the Transportation Conformity program, serve as legal and structural
examples of how EPA could develop regulations for GHG emissions under 111(d).
Based on experiences with these 110 programs, EPA can learn valuable lessons for the
development of a regulatory program that provides flexibility for states to use multi-state,
market-based mechanisms for compliance. First, the NOx SIP Call and Clean Air Interstate
Rule (“CAIR”) litigation demonstrate the D.C. Circuit’s commitment to the exact language
in the CAA. The court was, and could be suspicious of any programs that deviate from
the source specific language of 111(d), making it important for EPA to provide sound
legal ground for varying from the source-specific nature of 111(d). Furthermore,
EPA should not create a program that forces states to impose regulations outside of
the states’ statutory responsibilities. EPA should not restrain states choices, but
instead, allow states the flexibility in the development standards of performance.
EPA should also develop backstops for flexible programs to ensure all states and all
sources meet their emissions reductions, regardless of what happens in the courts.
This would allow EPA to give states the authority to implement flexible mechanisms
while ensuring that all states will reduce GHG emissions, even if the court strikes
down EPA’s authorization of non-source-specific programs, thereby avoiding the “unpromulgated
limbo” problems that arose in the Regional Haze litigation. Finally, Transportation
Conformity stands as an example of a flexible compliance mechanism under 110 that
could be used as a model for justifying the use of similarly flexible mechanisms in
a 110-like program under section 111(d). The regional budget setting process that
states use under the Transportation Conformity program provides a concrete example
of states working together to achieve compliance under section 110.
After analyzing these three programs, this paper considers two lines of policy arguments
supporting the use of multi-state, market-based programs under 111(d). This paper
assumes that EPA has the authority to create regulations under 111(d) that are not
source-specific, technology standards. Rather, the language of 111(d) authorizes the
agency to create the “best system of emissions reduction” which could include market-based
programs.
Type
Master's projectDepartment
The Sanford School of Public PolicyPermalink
https://hdl.handle.net/10161/6667Citation
Hauser, Janie (2013). How Can Multi-State Compliance Programs in State Implementation Plans under Section
110 of the Clean Air Act Inform the Potential Use of Multi-State, Market-Based Mechanisms
for Compliance with Section 111 of the Clean Air Act?. Master's project, Duke University. Retrieved from https://hdl.handle.net/10161/6667.More Info
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