The Clean Water Act prohibits putting “waste” into moving water, but it does allow “fill.” In 2002, the Bush administration redefined mine waste as fill, and within a few years hundreds of mountains were leveled while thousands of miles of streams and rivers were filled with toxic acidic rubble. It takes only a tiny change in how a rule is interpreted to literally lay waste to the land.
When it comes to the Clean Air Act and its relation to President Obama’s Clean Power Plan, the difference comes down to a single stroke of a pen—a stroke that failed to happen.
In 1990, when Congress passed the update to the Clean Air Act, it amended Section 111(d). A version of the amendment passed by the House said that if the E.P.A. was already regulating power plant pollution under a separate section of the law, it could not use Section 111(d) to create new regulations on the same plants. A version of the amendment passed by the Senate, however, did allow such overlapping regulation.
When the two bills were merged, lawmakers forgot to strike out one of the conflicting amendments in the bleary-eyed rush to push the bill through. So it was signed into law by President George Bush with both amendments.
Section 111(d) addresses pollutants that hadn’t been identified as harmful at the time of the law, such as CO2. So the bill, as it currently stands, both does and does not allow the EPA to regulate carbon emissions from power plants. However, it’s not that simple. Another part of the law, section 112, allows regulation of toxic emissions, and the EPA has argued that this section also applies, as carbon emissions have effects that are certainly life-threatening.
On Tuesday, opponents of the President’s plan will begin oral arguments in the DC Circuit of the United States Court of Appeals on the basis that the EPA has overstepped in regulating carbon emissions. Should the administration win the argument, implementation of the plan will continue for now, and there may be a marginal acceleration of the rate at which coal-fired power plants are being phased out. However, it’s actually market forces—cheap natural gas produced by fracking—that is currently driving the decline of coal, so even a loss in court won’t reverse that trend.
Where a loss in court would sting would be for the federal government’s ability to commit to agreements like the Paris Accord. With few other tools for the regulations of carbon emissions, a bad ruling on this point would turn U.S. agreement to such international agreements into little more than lip service.
However the DC Circuit rules, odds are this case is going to move right down the street to the Supreme Court … where the deciding vote could be the first judge seated by the new president.