Investor Presentaiton
32
a standard for emissions of air pollutants which
reflects the degree of emission limitation achievable
through the application of the best system of
emission reduction which (taking into account the
cost of achieving such reduction and any nonair
quality health and environmental impact and
energy requirements) the Administrator
determines has been adequately demonstrated.
Id. § 7411(a)(1).
Sections 111(a)(1), (b), and (d) operate as a funnel that
narrows from EPA's system-identifying role to the
specific standard for a particular stationary source. EPA
identifies a best system that is adequately demonstrated
and accounts for the three enumerated factors. That
system is used to determine an achievable degree of
emission limitation. The States or EPA then set
standards of performance reflecting that limitation for
individual sources to meet.
The D.C. Circuit went off course treating these
interlocking provisions as discrete objects. It focused on
select, isolated terms ("system" and "for") and used
dictionaries that supported their most expansive
meanings. It broadened its interpretation further by
emphasizing the statute's use of a nominalization instead
of a verb ("application” versus “apply") and lack of an
express indirect object. Then it refused to test whether
its capacious construction made sense by reading the
"standard of performance" definition within the
provisions where it is used. The result lets EPA pick
effectively anything as a "system," then dictate rules
through "application" of that system to anything else.
JA.106-20.View entire presentation