Environmental lawyers are split over whether proposed Environmental Protection Agency limits on carbon emissions from power plants are legal, according to a new survey.
The poll of 130 practicing environmental professors and lawyers revealed an equal percentage — 45 percent — thought the regulation was legal as did illegal. Ten percent said they weren’t sure.
The survey was conducted by Brian Potts, a partner at Foley & Lardner LLP, and Abigail Barnes, a Vermont Law School student who is pursuing a master’s of environmental management at Yale University. Both support climate regulation and some proposals in the EPA’s Clean Power Plan in particular. But they question whether the proposed rule is legal.
“As we see it, the job of a lawyer is to read and interpret the law, and personal beliefs shouldn’t impact his or her legal analysis. So although we might support climate regulation, that does not necessarily mean we will conclude that the Clean Power Plan is legal,” they wrote in a paper that will be published in July in “The Electricity Journal.”
Foley and Barnes found some interesting splits in their survey about the proposed rule, which is already facing lawsuits and will undoubtedly net more after it is finalized this summer.
At 80 percent, law professors were far more likely to believe the plan was legal than practicing attorneys, 27 percent of whom said the regulation could survive a court challenge. The authors said one reason could be bias — nearly three-quarters of practicing attorneys represented clients affected by the regulation. But they noted the poll was anonymous, so practicing attorneys might simply be more familiar with the ins and outs of the regulation.
The proposed rule aims to curb electricity emissions 30 percent below 2005 levels by 2030 and is the center of President Obama’s climate change agenda. The EPA is due to release the final version in August, as the agency sent the rule to the White House for review on Tuesday. Lobbyists and interest groups will spend the interim trying to shape the final rule in meetings with the administration.
Rule opponents contend the EPA lacks the authority to count on emissions reductions by adding renewable energy and customer-side energy efficiency because such measures aren’t confined to individual power plants. Some also have challenged whether it can rely on power plants switching from coal to natural gas, and many question whether power plants can reasonably achieve the efficiency improvements EPA anticipates.
The EPA and its Democratic and environmental supporters contend the agency has the legal authority to require emissions cuts beyond individual power plants because the Clean Air Act calls for regulating through the “best system of emission reductions.” The EPA views the entire infrastructure that brings electricity to customers as the system being regulated.
Of those who thought the proposed rule was illegal, the highest number of respondents found the renewable energy and energy-efficiency portions as violating the Clean Air Act (both 75 percent). That was followed by the expectation that the EPA can call on power plants to switch to natural gas and the idea that the EPA has authority at all to regulate carbon emissions under section 111(d) of the Clean Air Act (both 57.1 percent).
Few, however, ascribed to the belief of Harvard Law professor and Obama mentor Laurence Tribe that the regulation as a whole was unconstitutional. Just 17.9 percent agreed with Tribe.
“[M]ost respondents do not believe that [improving efficiency at power plants] is illegal, or that the plan is unconstitutional. Considering that these two arguments are widely viewed as the weakest challenges to the plan’s legality, this did not come as much of a surprise. But it certainly does not bode well for Professor Tribe’s constitutional arguments: the long-time liberal lion is certainly in the minority with his belief that the Clean Power Plan is unconstitutional,” Potts and Barnes wrote.
But at 50.8 percent, even most respondents who thought the regulation was illegal believed states should submit a plan to comply with the rule. That’s the opposite of what opponent Senate Majority Leader Mitch McConnell, R-Ky., has advocated, though more than one-third of respondents said they agreed with McConnell’s approach. The remaining 15.3 percent said they weren’t sure whether states should file a plan.
Still, the one-third of respondents who said states shouldn’t submit a plan was higher than Potts and Barnes expected, they said. That’s because the alternative to states crafting their own plan is the federal government imposing its own on them.
“This percentage was higher than we anticipated, since this approach would likely increase electricity rates for those states that opt out and could invariably end up backfiring (which is ironic, since the reason many are suggesting that states opt out from a policy standpoint is because they believe the plan will increase electricity rates and hurt their state’s economy),” they wrote.
