Investor Presentaiton
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longstanding agency "practice may shed light on the
extent of power" Congress delegated, failure to assert
"power by those who presumably would be alert to
exercise it" is telling. FTC v. Bunte Bros., 312 U.S. 349,
352 (1941).
EPA's first Section 111(d) regulations contemplated
on-site measures "construction or installation of
emission control equipment or process change.” 40 C.F.R.
§ 60.21(h)(3). Consistent with that view, EPA did not use
Section 111(d) before the CPP to require measures other
than on-the-scene technologies. See, e.g., 61 Fed. Reg.
9,905, 9,914 (Mar. 12, 1996) (standards for landfill gas
emissions based on gas collection and control systems).
The only potential outliers allowed sources to use outside-
the-fenceline measures to comply with standards derived
from inside-the-fenceline "control technology available at
the time." 70 Fed. Reg. at 28,616-17, rule vacated by New
Jersey, 517 F.3d 574; see also 60 Fed. Reg. at 65,402. In
other words, although EPA had at times given incentives
to use cost-effective trading options, it had not compelled
owners to shift capital to other sources in a gambit to
restructure the industry. Thus, the CPP used a “decades-
old statute" to justify sweeping regulations of a new kind.
Ala. Ass'n, 141 S. Ct. at 2486. Courts are rightly
suspicious of claims to "discover in a long-extant statute
an unheralded power to regulate a significant portion of
the American economy." UARG, 573 U.S. at 324 (cleaned
up).
The majority downplayed the CPP's novelty by
pointing to prior EPA regulations that could have had
"some generation-shifting effect" because they affected
the "cost of doing business for particular plants." JA.151.
That approach conflates a rule's ripple effects with its
primary aim. Authority to take steps with “implicationsView entire presentation