Greenhouse gas (GHG) regulation picks up where Acid Rain legislation left off, but affects far more sources and pollutants. Utility compliance programs face major uncertainties.
EPA's Emissions Rule: Reliability at Stake?
One deals with the eight-hour and the other deals with the NO x SIP Call. We might be able to find some constitutional issues with the ruling," says Midwest Ozone Group's Beckett.
"An option would be to find a stay while the Supreme Court decides. There will be a filing in 90 days," she says.
Beckett explains the constitutional issue that she might raise.
"One constitutional issue deals with the very same concept that is in the eight-hour ozone appeal to the Supreme Court. That dealt with an unconstitutional delegation of authority.
"What the D.C. Circuit Court in the NO x SIP Call said is it did not see the same [unconstitutional delegation] as in the eight-hour standard because it saw 22 states affected," she says.
According to Beckett, the D.C. Circuit Court ruling suggests that because the NO x SIP Call rule does not affect everyone in the country, there is no basis for ruling the delegation of authority unconstitutional.
"Having said that, are constitutional issues only constitutional when it only affects half? Since the NO x SIP Call only affects a few states, the EPA actions would not be subject to constitutional review," she says.
Beckett admits that would be a difficult argument to pursue in court. Rather, when all legal remedies are exhausted, she says, the industry will go to Congress.
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