The Legal Scrutiny Surrounding §111(d): Will It Survive or Stumble?

EPA’s Clean Power Plan is the Obama Administration’s most important effort to address the challenge of climate change. But it also raises significant legal issues of first impression ranging from unsettled statutory language to EPA’s splintered approach under different subsections of CAA §111 to judicial skepticism about EPA’s expansive CAA approach using a very narrow statutory provision. Although the courts likely will be inclined to grant EPA significant deference in pursuit of the important goal of curbing greenhouse gas emissions, concerns regarding the precedent-setting nature of EPA’s “beyond the fenceline” approach in this rule and future rulemakings for other sectors likely could tip the scales against upholding the rule.