The EPA’s Clean Power Plan (RIN2060-AR33), released August 3, 2015, sets individual state emissions targets allows states to craft their own plan to meet those requirements.  In the rule, the EPA has also proposed a model federal plan which it will impose on states that choose not to submit their own.

The federal plan focuses entirely on emissions trading, and it is widely anticipated that states that choose to implement their own plan will follow suit.  The EPA has previously enacted trading schemes for emissions of conventional pollutants, such as sulfur and nitrogen, but those programs were established under separate provisions of the Clean Air Act (“CAA”), and often came at the direction of Congress.  Regarding sulfur, Congress directly authorized the EPA to pursue an emission training program for sulfur dioxide when the CAA was last amended by adding Title IV to the statute.

The agency has received no such authorization from Congress for greenhouse gases.  It is widely anticipated that opponents of the plan will argue that, because Congress has tried to implement a trading program in the past for greenhouse gases and failed, the EPA lacks authority to implement a similar program by administrative order.

For more information, please contact Phillip Hoover.