Fact-checking opponents of the Clean Power Plan
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On Sept. 27, mere hours after the conclusion of the first presidential debate, opponents of the Environmental Protection Agency's (EPA) Clean Power Plan presented their case in a lengthy oral argument before the U.S. Court of Appeals for the D.C. Circuit.

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The Clean Power Plan aims to reduce carbon dioxide emissions from the nation's existing power plants. A coalition of states, utilities, coal companies and other industry groups have sought to block the rule since it was first proposed in June 2014, while a competing group of states, municipalities, power companies, environmental and public health organizations, and clean energy producers have intervened to support the EPA.

Like the statements of a candidate at a political debate, a litigant's claims at oral argument shouldn't always be taken at face value. As we explored in a recent report, over the course of the D.C. Circuit hearing, the Clean Power Plan's opponents made several legal and factual assertions that don't stand up to scrutiny.

We set the record straight here.

Fact check No. 1: The Clean Power Plan's use of generation shifting is not unprecedented.

The Clean Power Plan's emission guidelines are based, in part, on an assumption that regulated entities will decrease their reliance on higher-polluting sources of electricity (like coal plants) and increase their use of lower- or non-polluting sources (like gas plants, wind farms and solar arrays).

At the argument, the challengers contended that this reliance on "generation shifting" as a means of cutting pollution — as opposed to the installation of a pollution-reducing technology at each plant — represents an "enormous and transformative" expansion of the EPA's regulatory authority.

The trouble with this claim is that the EPA has used generation shifting in prior rules aimed at other types of air pollution, including mercury and soot- and smog-forming emissions.

Past rules aimed at pollution from motor vehicles and the lead content of gasoline have similarly focused on regulated sources' collective ability to reduce emissions, rather than setting standards based only on what each source can accomplish independently.

Fact check No. 2: The text of the Clean Air Act does not unambiguously support the challengers' efforts to limit its coverage.

In 1990, Congress mistakenly passed two separate amendments to Section 111(d) of the Clean Air Act, under which the Clean Power Plan was issued. One amendment originated in the House, and another in the Senate, but both wound up in the conference bill that was passed by both chambers and signed by the president.

At the argument, the challengers asserted that the House amendment unambiguously supports their position in the case, which is that the EPA cannot regulate carbon dioxide from power plants under Section 111(d) because it has already regulated mercury from those plants under Section 112.

But, as a number of the D.C. Circuit judges acknowledged, the wording of the House amendment is anything but clear. While it is possible to read the text in the manner suggested by the challengers, there are many other plausible readings that don't support their position.

And when statutory text is ambiguous, courts typically defer to an agency's interpretation — meaning that the EPA's reading of the law should trump the challengers'.

Furthermore, the Senate amendment unambiguously supports the EPA's position, but the challengers erroneously argued that it should be ignored.

Fact check No. 3: The EPA did conduct a thorough cost-benefit analysis of the Clean Power Plan.

In one of the day's most blatantly incorrect assertions, a lawyer for the challengers claimed that the EPA did not do a cost-benefit analysis of the rule.

This is patently false.

The EPA conducted a thorough Regulatory Impact Analysis of the Clean Power Plan, which projected that, by 2030, the rule's annual benefits would exceed its costs by $26 to $45 billion dollars.

The challengers even cite this economic analysis in their briefs.

Fact check No. 4: The Clean Power Plan is not an attempt to enact Congress's failed 2009 cap-and-trade bill through executive action.

Toward the end of the day, the challengers characterized the Clean Power Plan as an attempt by the Obama administration to implement Congress's 2009 cap-and-trade bill (also known as Waxman-Markey) — which passed the House but never received a vote in the Senate — through executive action. They suggested that this legislative background supports their claim that the EPA exceeded its legal authority in issuing the Clean Power Plan.

But this argument is fatally flawed in multiple respects.

First, Waxman-Markey and the Clean Power Plan differ in fundamental ways. Unlike the congressional bill, the Clean Power Plan does not apply to the entire economy, does not cap overall emissions and does not require emissions trading.

Second, the Supreme Court has held that congressional inaction generally deserves "little weight" when interpreting statutes.

And third, even if the D.C. Circuit were to consider Congress's 2009 inaction on Waxman-Markey, it would also need to take into account more recent, unsuccessful efforts by congressional Republicans to strip the EPA of its carbon-regulating powers under the Clean Air Act.

After all, if the failure to pass cap-and-trade can be taken as evidence that the EPA lacks power to issue the Clean Power Plan, Congress's recent inaction on bills attempting to block the plan should constitute even more persuasive proof that the agency has authority to issue it.

Fact check No. 5: The Clean Power Plan is not primarily responsible for coal's decline.

Listening to the challengers' arguments about the Clean Power Plan's effects, one could easily get the impression that, in the absence of the plan, coal-fired power plants would be thriving.

The reality is that, even without the Clean Power Plan, coal plants would be retiring in large numbers because of the low price of natural gas and the declining cost of renewable energy.

A recent analysis by the Energy Information Administration estimated that, without the Clean Power Plan in effect, about 57 gigawatts of coal-fired generation capacity would retire between 2015 and 2020. With the Clean Power Plan, that number climbs only to 62 gigawatts.

Thus, at least in the near term, the Clean Power Plan's impacts on the financial health of the coal industry and coal-fired power plants appear to be marginal.

In sum, the Clean Power Plan's opponents relied on a number of questionable contentions in their argument. Fact-checking can help set the record straight on the challengers' more dubious assertions.

The truth behind the spin is that the Clean Power Plan is consistent with the text of the Clean Air Act and with decades of prior efforts to implement it.

Revesz is dean emeritus and Lawrence King Professor of Law at New York University School of Law and director of the Institute for Policy Integrity. Grab and Lienke are senior attorneys at the Institute for Policy Integrity.


The views expressed by contributors are their own and not the views of The Hill.