Environmental Protection Agency

EPA Power Plant Rule Can Go Forward, Says Federal Court

Opponents vow to fight on arguing Obama's Clean Power Plan is unconstitutional.


EPA Logo

The EPA is the process of promulgating rules that would limit the amount of carbon dioxide electricity generation plants may emit. The regulatiolns are part of the Obama Administration's efforts to reduce the emissions of greenhouse gases thought by many researchers to be the main contributor to global climate change. Since coal emits relatively greater amounts of carbon dioxide when burned than other fuels, the new rules would significantly cut back on the amount of coal used to produce electricity. In an effort to forestall the adoption of the new rules, several states and power companies sued the agency in federal court arguing that the regulations are unconstitutional. Today the U.S. Court of Appeals for the District of Columbia Circuit ruled narrowly that the courts should not now intervene before the EPA rule is actually made final. That is likely to happen in August.

The Examiner reports:

The proposed EPA regulation, called the Clean Power Plan, seeks to curb electricity sector carbon emissions 30 percent below 2005 levels by 2030. It would allow states to reduce emissions by upgrading power plant energy efficiency, converting coal-fired power to natural gas, adding renewable power and enhancing customers' energy efficiency.

"EPA is pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature," EPA spokeswoman Liz Purchia said.

But the ruling is just a temporary reprieve for rule supporters, with the real slog coming once the agency finalizes the regulation in August. The federal court didn't consider the merits of the plaintiffs' arguments in its opinion, noting that it didn't have purview to do so when the rule was in draft form. …

Plaintiffs, led by attorney Laurence Tribe — a mentor of Obama at Harvard Law School — argued the proposal was unconstitutional because it calls on potential emissions reductions outside of individual smokestacks and delves into states' energy planning.

Interestingly, Tribe (who works as an attorney for one of the plaintiffs) testified before Congress earlier this year, asserting:

EPA lacks the statutory and constitutional authority to adopt its plan. The obscure section of the Clean Air Act that EPA invokes to support its breathtaking exercise of power in fact authorizes only regulating individual plants and, far from giving EPA the green light it claims, actually forbids what it seeks to do.

Even if the Act could be stretched to usurp state sovereignty and confiscate business investments the EPA had previously encouraged and in some cases mandated,as this plandoes, the duty to avoid clashing with the Tenth and Fifth Amendments would prohibit such stretching. EPA possesses only the authority granted to it by Congress. It lacks "implied" or "inherent" powers.

Its gambit here raises serious questions under the separation of powers, Article I, and Article III, because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts. The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a "power grab."

EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts—all at once. Burning the Constitution should not become part of our national energy policy.

Alas, burning sections of the Constitution has been policy for a while now. We shall how these arguments fare later this year.

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  1. We have to pass – er, I mean, adopt – it before we can find out what’s in it worth suing over?

  2. Or we could just run the world on zero CO2 emission molten salt thorium reactors for the next 10,000 years.


    1. If someone builds it and proves it is seriously cheaper, it would naturally proliferate quicker than any government reg.

      No need for thorium though. Uranium would be cheaper, at least to begin with.

      1. You’ll have to run run more enriched and at intermediate energies because of the neutron economy, but you avoid the chemical reprocessing step, so probably yes.

        1. And you avoid the complexity that breeding fissile material requires.

          Running one of these on 20% LEU is much simpler than trying to breed U-233 from thorium. At this point in time, there is no economic reason to design a thorium MSR. If we want to see one of these become more than an experiment run in the 60’s/70’s, LEU is the only realistic option. IMO, anyway.

          1. Even an LEU version is going to depend on breeding/converting. I don’t think you get around that without enriching further which has obvious proliferation issues. I do agree that focusing on Thorium over molten fuels is missing for the forest for the trees.

            1. I don’t think Oak Ridge thought that towards the end of their MSR program. They were moving towards their denatured MSR that would run on LEU.

              A conceptual core design was developed in which the power density was low enough to allow a 30-year life expectancy of the moderator graphite with a fluence limit of 3 x neutrons/m2 (E 50 keV). This reactor could be made critical with about 3450 kg of 20% enriched 235U and operated for 30 years with routine additions of denatured 235U and no chemical processing or removal of fission products.

              A Canadian company is designing just that up here. I was colleagues with their chief technologist before he joined the company. He is designing their “Integral Molten Salt Reactor”.

              1. Of course, there will always be some breeding of U238 into PU239, but at 20% enrichment it will be far less than, say a CANDU reactor breeds. It won’t be what keeps the reactor critical.

              2. *3 x 10^26 neutron/m2

              3. Interesting link. It’s amazing how much stuff from the MSRE is available now. If only the NRC and our fucked up courts would get the fuck out of the way.

                Look at sections and from the link. They breed fuel throughout the 30 year cycle. Over half of the burnup is Thorium.

              4. Is Terrestrial the one with sealed reactor units? You don’t replace the graphite core but replace the whole module? If so, how do they deal with Xe production? I asked on Forbes and got the “ancient chinese secret” answer.

                1. You got me on the DMSR. I forgot that they would add a little thorium to the mix throughout the life.

                  Terrestrials is the sealed core. I don’t know if they have revealed how they would deal with the noble gasses. It would likely be some sort of contained off gassing system though.

                2. It is incredible how much information is available on that entire program. What an incredible program it was for the relative shoe string budget it had compared to the LMBR programs at the time.

                  It is too bad it has been shelved until recently.

                  1. This is the fundamental reason that I drift libertarian. Huge collective efforts are dwarfed by the good work of handfuls of people or just individuals. I think it’s a reason that engineers and to a lesser degree science types (they tend to be more dependent on patrons for funding and operate in bigger packs) skew that way. I see it in my company all the time. We piss away hundreds of million$ on huge projects while little pirate operations keep the lights on.

                    And MSR’s are still shelved as far as the US is concerned. Windmills and mirrors will save us (disclaimer: still working on that night problem)!

                    1. Polywell had their chance. It’s a (very pretty) unicorn. Maybe if Bussard had lived…

      2. The beauty of thorium with molten salt is you don’t have to enrich it. You just dump it in.

        1. No.

  3. I won’t really need electricity once the FCC is done ruining the internet anyway.

    1. Nobody needs more than 7 kWh anyway.

  4. I for one, fully support this law and all of it’s conceivable consequences. Unless the authorities dislike this law in case I will revise my position after careful consideration.

    1. My real name is Hillary Clinton.

      1. Call me Ishmael

        1. “Call me, Ishmael, any time”. Peter deVries

  5. I do so love how so few even bother to question where the AUTHORITAH! to do this comes from. “You and what….oh, THAT army. Right.”

  6. The EPA is the process of promulgating rules that would limit the amount of carbon dioxide electricity generation plants may emit.

    Let in the Carbon Credit cronies!

    What? Did you really think all of this is about clean air? Bwa ha ha ha! Ah, you silly geese!

    1. Long ago, before Enron went tits up, The Smartest Guys in the Room were pushing hard for carbon trading. Others have kept lobbying and success for them is in sight.

      And here’s the great thing about it. Unlike traditional commodities markets, which will eventually involve delivery to someone in physical form, the carbon market is based on lack of delivery of an invisible substance to no-one.
      …Jeremy Warner

      1. Nothing is delivered to no-one… Sounds like a government scheme to me.

  7. It’s a penalcap!

  8. I’ve been watching the old Racket Squad DVDs on Netflix. OH Lt. Raddock, where are you when we need you?!?

  9. Basically, the EPA has the authority to regulate anything they decide is a pollutant, in other words everything — including people.

    1. So, Soylent Green is right in their wheelhouse.

  10. If this is what Washington wants, the energy policy of Texas, Louisiana, Oklahoma, and Mississippi should be to reduce emissions by limiting the production of energy products and petrochemicals for in-state purposes only. The citizens of those states should not be made to suffer to supply Yankees with the hydrocarbons they so despise. Let the bastards freeze in the dark.

  11. No part of the Constitution was burned, it was upheld. So sayeth the courts. Hey, I think Heller burned part of the Constitution. Just like you, it’s only opinion…and whining.

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