Investor Presentaiton
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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