Investor Presentaiton slide image

Investor Presentaiton

19 3. So the only issue remaining—and it is no close one, really is whether the broad powers EPA may now wield under Section 111(d) implicate a major question. They do. According to the majority, EPA may use Section 111(d) to employ any "common plan," JA.108, that applies to whatever pollutant, source, or category EPA designates, JA.112, so long as the plan “concern[s]" a regulated source, JA.117. In doing so, EPA need only "tak[e] into account" cost, nonair health and environmental consequences, and energy needs. 42 U.S.C. § 7411(a)(1). The statute says nothing about how the agency must weigh these factors, and agency-deference principles would set a high barrier for any challenge to their use. The D.C. Circuit thus extended Section 111 beyond even the CPP's unprecedented scope. The breadth of this new regulatory supremacy is hard to overstate. Outside the electricity sector, any buildings that draw from or produce carbon-generating power-manufacturing plants, homes, hospitals, and otherwise-now fall under EPA's mandate. The rationale below instructs EPA to consider demand-side (that is, consumer-focused) measures as an option. JA.143 n.9. EPA could view fees- de facto taxes-as a new incentive "system" to promote using sources it prefers at the expense of others. Or EPA could force financial divestment from carbon-producing activities, or determine that the "best system" includes banning import or export of carbon-intensive goods. And nothing but administrative grace would prevent EPA from issuing rules that require shutting down carbon- emitting sources in any economic sector. So while EPA must justify its choice by reference to the three statutory factors, the decision below finds "no limits on the types of measures that EPA may consider." JA.118.
View entire presentation