Old statutes, new problems

University of Pennsylvania Law Review

Volumn 163, Issue 1, 2014, Pages 1-93

  Freeman, Jody ^a   Spence, David B ^b  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84920718211     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (391)

1. See Chris Cillizza, The Least Productive Congress Ever, WASH. POST (July 17, 2013), http://www.washingtonpost.com/blogs/the-fix/wp/2013/07/17/the-least-productive-congress-ever/, archived at http://perma.cc/J2XV-EJRH (noting that the 112th Congress passed fewer bills than any Congress "since they began keeping these stats way back in 1947" and ascribing the problem in part to "factionalism").
2. For an article describing agency techniques of strategic restraint, inaction, and delay as salutary rather than evidence of shirking, see Sharon Jacobs, The Administrative State's Passive Virtues, 66 ADMIN. L. REV. (forthcoming 2014).
3. See, e.g., GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 33 (1982)
4. Benjamin N. Cardozo, A Ministry of Justice, 35 HARV. L. REV. 113, 114 (1921) ("Legislature and courts move on in proud and silent isolation.")
5. Henry J. Friendly, The Gap in Lawmaking-Judges Who Can't and Legislators Who Won't, 63 COLUM. L. REV. 787, 792 (1963) ("What I do lament is that the legislator has diminished the role of the judge by occupying vast fields and then has failed to keep them ploughed.")
6. Roscoe Pound, Anachronisms in Law, 3 J. AM. JUDICATURE SOC'Y 142, 144 (1920) (describing "institutions, doctrines, and rules which have survived the original reasons of their contrivance . . . , but now impede effective administration of justice").
7. See, e.g., Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 544 (1983) (arguing against roving authority to engage in judicial common law revision of statutes)
8. William N. Eskridge Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1481 n.7, 1530-34 (1987) (advocating for judges to engage in dynamic statutory interpretation to counteract the effect of legislative inattention to general public interests, claiming that judges are more trustworthy than agencies because they are less influenced by regulated groups, and expressing the view that his proposal "stops far short" of Calabresi's proposal)
9. Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179, 197 (1986) (criticizing Calabresi's proposal on grounds that the concept of "statutory obsolescence" is too vague to constrain judicial behavior, among other reasons)
10. Abner J. Mikva, The Shifting Sands of Legal Topography, 96 HARV. L. REV. 534, 540-43 (1982)
11. See, e.g., Jeffrey E. Shuren, Essay, The Modern Regulatory Administrative State: A Response to Changing Circumstances, 38 HARV. J. ON LEGIS. 291, 292 (2001) ("One of the primary reasons for granting agencies broad judicial deference in the implementation of statutory mandates is that agencies are the governmental entities best equipped to respond to changing circumstances.")
12. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2102-03 (1990) (concluding that agencies "are far better situated than courts to soften statutory rigidities or to adapt their terms to unanticipated conditions" due to their "fact-finding capacities, electoral accountability, and continuing attention to changed circumstances").
13. See Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV. 273, 275-76 (2011) (arguing that polarization cannot be addressed effectively by various institutional solutions, is caused by long-term historical processes, and is likely to be enduring).
14. City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878-79 (2013) (Roberts, C.J., dissenting) (citations omitted).
15. But cf. Midwest ISO Transmission Owners v. FERC, 373 F.3d 1361, 1368 (D.C. Cir. 2004) (Roberts, J.) (adopting an expansive view of FERC's authority under the Federal Power Act to spread the costs of new transmission investment).
16. The Communications Act is arguably again out of date, as the FCC continues to strain to adapt it to emerging technologies. See, e.g., Verizon v. FCC, 740 F.3d 623, 658-59 (D.C. Cir. 2014) (rejecting the FCC's attempt to adopt "net neutrality" rules requiring broadband providers to adhere to open-access network requirements given that only common carriers are subject to such requirements and the FCC did not classify broadband providers as such).
17. The FDA's governing statute has been amended in numerous small ways over the years, but there have also been long periods during which the FDA struggled to implement the statute under the supervision of the courts. See Richard A. Merrill, FDA's Implementation of the Delaney Clause: Repudiation of Congressional Choice or Reasoned Adaptation to Scientific Progress?, 5 YALE J. ON REG. 1, 3-13 (1988) (recounting the FDA's struggle to adapt the language of the "Delaney Clause," which prohibited FDA approval of food additives that "induce cancer," when post-enactment advances in science revealed a multitude of popular food additives pose at least a minimal risk of cancer). The food safety regime under the Food, Drug, and Cosmetic Act (FDCA) was not significantly updated until 2011.
18. See FDA Food Safety Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2011)
19. codified in scattered sections of 7 U.S.C., 21 U.S.C., and 42 U.S.C. (2012)
20. John C. Roberts, The Sources of Statutory Meaning: An Archaeological Case Study of the 1996 Telecommunications Act, 53 SMU L. REV. 143, 146-47 (2000) (describing a fifty-year period during which Congress repeatedly rebuffed FCC appeals to modernize the Communications Act to address new technologies, leaving the FCC to "stagger blindly" on its own)
21. see also Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 275, 342-54 (1989) (noting that new communications media and increased private use outpaced the inflexible statutory provisions in the Copyright Act of 1976).
22. See Donald C. Langevoort, Statutory Obsolescence and the Judicial Process: The Revisionist Role of the Courts in Federal Banking Regulation, 85 MICH. L. REV. 672, 673-74 (1987). Only after the financial crisis of 2008-2009 did Congress adopt a variety of reforms intended to curb the risks of new financial products (such as mortgage-backed securities) and new market practices (such as proprietary trading by banks) that had produced extremely high systemic risk.
23. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010)
24. codified in scattered sections of 2 U.S.C., 5 U.S.C., 12 U.S.C., 15 U.S.C., 18 U.S.C., 28 U.S.C., 31 U.S.C., 42 U.S.C., and 44 U.S.C. (2012).
25. Clean Air Act, Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42 U.S.C. §§ 7401-7671q (2012)).
26. Federal Power Act, ch. 687, 49 Stat. 803 (1935) (codified as amended at 16 U.S.C. §§ 791-828c (2012)).
27. See Jonathan H. Adler, Conservative Principles for Environmental Reform, 23 DUKE ENVTL. L. & POL'Y F. 253, 253-54 (2013) (claiming that "[m]ajor environmental policy reform is long overdue" and lamenting the application of twentieth century regulatory measures to twenty-first century problems)
28. Carol A. Casazza Herman et al., Breaking the Logjam: Environmental Reform for the New Congress and Administration, 17 N.Y.U. ENVTL. L.J. 1, 1 (2008) ("For almost 20 years, political polarization and a lack of leadership have left environmental protection in the United States burdened with obsolescent statutes and regulatory strategies.").
29. Natural Gas Act, ch. 556, 52 Stat. 821 (1938) (codified as amended at 15 U.S.C. §§ 717-717z (2012)).
30. The Federal Power Act, in particular, was partly a response to the Supreme Court's decision in Public Utilities Commission of Rhode Island v. Attleboro Steam & Electric Co., 273 U.S. 83, 89-90 (1927) (striking down state regulation of cross-border electricity sales on Commerce Clause grounds)
31. see also Natural Gas: Hearing on H.R. 11662 Before a Subcomm. of the H. Comm. On Interstate and Foreign Commerce, 74th Cong. 13 (1936) (statement of Dozier A. DeVane, Solicitor, Fed. Power Comm'n) (discussing Congress's power under the Commerce Clause).
32. The Supreme Court has said that the primary aim of the NGA was "to protect consumers against exploitation at the hands of natural gas companies." Fed. Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 610-11 (1944).
33. In section 7 of the Natural Gas Act, Congress delegated to FERC the power to site interstate natural gas pipelines, in part because natural gas (unlike electricity) could not be produced everywhere it was needed, therefore necessitating transmission of natural gas across state lines. See 15 U.S.C. § 717f(c) (2012). A variety of other New Deal-era statutes addressed energy needs.
34. See, e.g., Rural Electrification Act of 1936, ch. 432, 49 Stat. 1363 (codified as amended at 7 U.S.C. §§ 901-918c (2012)) (seeking to promote electricity service in rural areas not served by investorowned utilities)
35. National Industrial Recovery Act, ch. 90, 48 Stat. 195 (1933) (codified at 15 U.S.C. §§ 701-712 (1934)) (seeking to relieve boom-bust cycles and price volatility in the domestic oil production industry), invalidated by A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (overturning the law on nondelegation grounds).
36. Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (1972)
37. codified as amended at 33 U.S.C. §§ 1251-1387 (2012).
38. The period from 1969 through 1980 is sometimes referred to as "the environmental decade." See generally LETTIE M. WENNER, THE ENVIRONMENTAL DECADE IN COURT 1, 15-19 (1982) (chronicling the proliferation of environmental laws in the decade following the passage of the National Environmental Policy Act in 1969).
39. Several other foundational environmental laws were enacted during this period, including the Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-1544 (2012)
40. Toxic Substances Control Act, Pub. L. No. 94-469, 90 Stat. 2003 (1976)
41. codified as amended at 15 U.S.C. §§ 2601-2692 (2012)
42. Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (codified as amended at 42 U.S.C. §§ 6901-6987 (2012)
43. the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended at 42 U.S.C. §§ 9601-9675 (2012)), better known as "Superfund."
44. Among other things, the 1977 amendments codified the "prevention of significant deterioration" (PSD) permit program, which imposed emissions limits on sources of air pollution in attainment areas-that is, areas in compliance with national ambient air quality standards. See 42 U.S.C. §§ 7470-7492 (2012).
45. The 1990 amendments established the acid rain program for coal-fired power plants, see 42 U.S.C. §§ 7651-76510 (2012)
46. strengthened the regulation of toxic emissions by listing 189 specific toxics and substituting technology-based standards for health-based ones, see 42 U.S.C. § 7412 (2012).
47. The Natural Gas Policy Act of 1978, Pub. L. No. 95-621, 92 Stat. 3350 (codified as amended at 15 U.S.C. §§ 3301-3432 (2012))
48. was a response to the natural gas price spikes and shortages of the 1970s, which were themselves, by most accounts, the product of regulatory dysfunction caused by the Supreme Court's decision in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954).
49. See Richard J. Pierce Jr., State Regulation of Natural Gas in a Federally Deregulated Market: The Tragedy of the Commons Revisited, 73 CORNELL L. REV. 15, 18 (1987) (noting that in 1954, "the federal government began regulating the price of all producer sales of gas for resale in interstate commerce under the Natural Gas Act").
50. The Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (codified as amended in scattered sections of 7 U.S.C., 15 U.S.C., 16 U.S.C., 30 U.S.C., 42 U.S.C., and 43 U.S.C. (2012)), established incentives for the construction of non-utility-owned electric generating facilities using renewable resources or more efficient technologies.
51. See 42 U.S.C. § 7651 (2012) (finding that "acidic compounds . . . in the atmosphere . . . represent a threat to natural resources, ecosystems, materials, visibility, and public health" and that "the principal sources of the acidic compounds and their precursors in the atmosphere are emissions of sulfur and nitrogen oxides from the combustion of fossil fuels").
52. See 42 U.S.C. §§ 7671a-7671q (2012)
53. (authorizing EPA to phase out production and import of ozone depleting substances); Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 29, 26 I.L.M. 1541 (entered into force Jan. 1, 1989).
54. See LENNY BERNSTEIN ET AL., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS REPORT 30, 37 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4-syr.pdf (stating that warming of the climate system is "unequivocal" and reporting with "very high confidence" that the net effect of human activities since 1750, primarily fossil fuel use, has been one of warming)
55. see also CLIMATE CHANGE 2013: THE PHYSICAL SCIENCE BASIS 17 (Thomas F. Stocker et al. eds., 2013), available at http://www.climatechange2013.org/images/report/WG1AR5-ALL-FINAL.pdf (reporting that human activities are the dominant cause of observed warming since the twentieth century).
56. Over time, circumstances change, and the preferences of voters, regulatory agencies, and successive congresses may diverge from those of the enacting Congress, while agencies continue to operate under the legislative mandate established by the enacting Congress. Some scholars call this "legislative drift" or "coalitional drift." See Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs, 75 VA. L. REV. 499, 503-07 (1989) (noting the "multifaceted nature of 'drift'" and the inseparability of bureaucratic and legislative drift)
57. see also Jonathan R. Macey, Organizational Design and Political Control of Administrative Agencies, 8 J.L. ECON. & ORG. 93, 94-99 (1992) (critiquing the use of procedural rules to address bureaucratic drift).
58. For a summary of the enormous public choice literature on delegation to agencies, see David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 GEO. L.J. 97, 102-06 (2000).
59. Mancur Olson's analysis of group formation implied that policy processes would systematically undervalue the preferences of large diffuse groups compared with those of small cohesive groups. See MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION 128 (1965).
60. For a good summary of economic analysis of interest groups following Olson, see RUSSELL HARDIN, COLLECTIVE ACTION 38-49 (1982)
61. which offers a discussion Olson's work on the relationship between group size and group success, and TODD SANDLER, COLLECTIVE ACTION: THEORY AND APPLICATIONS 63-94 (1992), for information on developments in collective action theory.
62. JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES 124-31 (2d ed. 2003)
63. Michael D. Cohen et al., A Garbage Can Model of Organizational Choice, 17 ADMIN. SCI. Q. 1, 2 (1972) ("[O]ne can view a choice opportunity as a garbage can into which various kinds of problems and solutions are dumped by participants as they are generated.")
64. Charles E. Lindblom, The Science of "Muddling Through," 19 PUB. ADMIN. REV. 79, 81-83 (1959) (describing the method of successive limited comparisons and its role in policy formulation)
65. Herbert A. Simon, The Proverbs of Administration, 6 PUB. ADMIN. REV. 53, 62-67 (1946) (addressing criticisms of the administrative theory and proposing broader solutions).
66. For a critique of Kingdon's model, see Gary Mucciaroni, The Garbage Can Model & the Study of Policy Making: A Critique, 24 POLITY 459, 466-67, 473-74 (1992), where Mucciaroni criticizes the model's indeterminacy and questions its usefulness.
67. Scholars sometimes call these groundswells of public interest "republican moments." This idea comes from James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. PA. L. REV. 287, 310-13 (1990).
68. Dan Farber adapted it to environmental politics in Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. ECON. & ORG. 59, 66-67 (1992).
69. KINGDON, supra note 36, at 93. Economist Anthony Downs, a rational choice political theorist, also conceived of republican moments as cyclical. See Anthony Downs, Up and Down with Ecology-The "Issue-Attention Cycle," 28 PUB. INT. 38, 38-43 (1972) (noting that only during times of intense public pressure for action is it possible to overcome the usual legislative inertia and produce major regulatory legislation).
70. Cf. E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 326-334 (1985) (noting that public pressure to fix pollution problems led to stringent environmental legislation).
71. Carter-era energy legislation included major regulatory initiatives like the Natural Gas Policy Act of 1978, Pub. L. No. 95-621, 92 Stat. 3350 (codified as amended at 15 U.S.C. §§ 3301-3432 (2012)
72. which deregulated wellhead prices of natural gas, the Powerplant and Industrial Fuel Use Act of 1978, Pub. L. No. 95-620, 92 Stat. 3289 (codified as amended at 42 U.S.C. §§ 8301-8484 (2012)
73. which restricts uses of natural gas, and the Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (codified as amended in scattered sections of 7 U.S.C., 15 U.S.C., 16 U.S.C., 30 U.S.C., 42 U.S.C., and 43 U.S.C. (2012)
74. which established incentives for alternative energy projects. Earlier in the decade, Congress passed the Energy Policy and Conservation Act, Pub. L. No. 94-163, 89 Stat. 871 (1975) (codified as amended in scattered sections of 15 U.S.C. (2012), 42 U.S.C. (2012), and 50 U.S.C. App. (2006)), creating national fuel economy standards for automobiles (commonly known as "CAFE standards") and establishing the Strategic Petroleum Reserve.
75. For an overview of the data on and theories of congressional polarization, and for an application of some of those data to the theories, see JOHN H. ALDRICH, WHY PARTIES? THE ORIGINS AND TRANSFORMATION OF POLITICAL PARTIES IN AMERICA 82-96 (1995)
76. KEITH T. POOLE & HOWARD ROSENTHAL, IDEOLOGY & CONGRESS 301-05 (2d rev. ed. 2007)
77. SEAN M. THERAIULT, PARTY POLARIZATION IN CONGRESS 11-42 (2008)
78. Morris P. Fiorina & Samuel J. Abrams, Political Polarization in the American Public, 11 ANN. REV. POL. SCI. 563 (2008) (highlighting a divergence between elite polarization and mass polarization)
79. Morris P. Fiorina, Whatever Happened to the Median Voter? (Oct. 2, 1999) (unpublished manuscript), available at http://web.stanford.edu/~mfiorina/Fiorina%20Web%20Files/MedianVoterPaper.pdf (discussing possible explanations for increasing polarization between candidates).
80. For a thorough explanation of these data and how they document increasing polarization in American politics, see NOLAN MCCARTY, KEITH T. POOLE & HOWARD ROSENTHAL, POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES 15-70 (2006).
81. For a striking visual illustration of polarization in Congress, see Nolan McCarty, Keith T. Poole & Howard Rosenthal, Polarized America: The Dance of Ideology and Unequal Riches, VOTEVIEW.COM, http://voteview.com/polarizedamerica.asp (last visited Oct. 3, 2014), archived at http://perma.cc/9X5B-8XY4.
82. Lynda Lee Kaid et al., An Analysis of George Bush's 1988 and 1992 Campaign Advertising: Revisiting the Definition of a Presidential Candidate, in HONOR AND LOYALTY: INSIDE THE POLITICS OF THE GEORGE H. W. BUSH WHITE HOUSE 8 (Leslie D. Feldman & Rosanna Perotti eds., 2002).
83. See Keith T. Poole & Howard Rosenthal, The Polarization of the Congressional Parties, VOTEVIEW.COM, http://voteview.com/political-polarization.asp (last updated Jan. 19, 2014), archived at http://perma.cc/CA74-8R6E.
84. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified in scattered sections of 2 U.S.C., 5 U.S.C., 12 U.S.C., 15 U.S.C., 18 U.S.C., 28 U.S.C., 31 U.S.C., 42 U.S.C., and 44 U.S.C. (2012)). The financial crisis of 2008-2009 mobilized public support for additional regulation of the financial services industry, and the support was sufficiently strong to overcome prior partisan divisions on the issue.
85. Cf., e.g., Karlyn Bowman & Andrew Rugg, 5 Years After the Crash, What Do Americans Think of Wall Street, Banks, and Free Enterprise?, AMERICAN (Sept. 13, 2013), http://www.american.com/archive/2013/september/five-yearsafter-the-crash-what-do-americans-think-of-wall-street-banks-and-free-enterprise, archived at http://perma.cc/ZZ3R-ZT84 (summarizing public opinion toward Wall Street before and after the financial crisis).
86. Congress finally updated the FDCA in the FDA Food Safety Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2011) (codified in scattered sections of 7 U.S.C., 21 U.S.C., and 42 U.S.C. (2012)). The 2011 reforms shifted the FDA's focus from reactive to preventive, expanded FDA powers to inspect and recall, established risk-based priorities, and addressed major weaknesses in import safety assurances. These changes were in part a response to a number of crises involving contamination, but also were prompted by developments such as greater consumption of imported and unprocessed foods, new technologies like genetically modified organisms, and an evolution in regulatory thinking about the benefits of risk analysis and cost-benefit analysis.
87. For example, Republican leaders in Congress continue to express skepticism about climate science and oppose GHG regulation on that basis, despite an overwhelming scientific consensus that the climate is warming largely as result of human fossil fuel consumption. See, e.g., Ned Resnikoff, Senate Committee Again Debates Existence of Climate Change, MSNBC, http://www.msnbc.com/all/senate-republicans-what-climate-change (last updated Jan. 30, 2014), archived at http://perma.cc/C25R-6YCN (highlighting Senator Jim Inhofe's view that climate change science is a hoax)
88. see also BERNSTEIN ET AL., supra note 31 (summarizing the scientific consensus); NAT'L CLIMATE ASSESSMENT & DEV. ADVISORY COMM., NATIONAL CLIMATE ASSESSMENT REPORT: DRAFT FOR PUBLIC COMMENT 25, 27 (2013), available at http://www.globalchange.gov/sites/globalchange/files/NCAJan11-2013-publicreviewdraft-chap2-climate.pdf (stating that "[g]lobal climate is changing now" and the "primary drivers of [climate] change are human in origin"). Poole and Rosenthal describe the ideological divide captured by their data as one centered on the role of government intervention in the economy.
89. See Royce Carroll et al., DW-NOMINATE Scores with Bootstrapped Standard Errors, VOTEVIEW.COM, http://voteview.com/dwnominate.asp (last updated Feb. 17, 2013), archived at http://perma.cc/95KT-5MZN ("[T]he first dimension can be interpreted in most periods as government intervention in the economy or liberal-conservative in the modern era."). Because regulation of the energy industry provides a diffuse public benefit while ostensibly imposing concentrated costs on firms, it seems like a quintessential example of a policy domain in which the divide is growing wider.
90. See, e.g., DAVID SCHOENBROD ET AL., BREAKING THE LOGJAM: ENVIRONMENTAL REFORM FOR THE NEW CONGRESS AND ADMINISTRATION (N.Y. Univ. Sch. of Law Breaking the Logjam Project ed., 2009), available at http://www.breakingthelogjam.org/wp-content/uploads/sites/23/2014/06/BreakingLogjamReportfinal.pdf (proposing specific reforms targeted at improving the efficiency and efficacy of environmental regulations).
91. For a comprehensive set of recommendations on these topics and many others (not exclusively aimed at Congress but including many recommendations for federal legislation), see BIPARTISAN POLICY CTR., AMERICA'S ENERGY RESURGENCE: SUSTAINING SUCCESS, CONFRONTING CHALLENGES (2013), available at http://bipartisanpolicy.org/sites/default/files/BPC%20SEPI%20Energy%20Report%202013.pdf.
92. see Robin Kundis Craig, Climate Change, Regulatory Fragmentation, and Water Triage, 79 U. COLO. L. REV. 825, 914 (2008)
93. H. M. Zamudio, Note, Predicting the Future and Acting Now: Climate Change, the Clean Water Act, and the Lake Champlain Phosphorus TMDL, 35 VT. L. REV. 975, 994-95 (2011).
94. See OFFICE OF INFO. & REGULATORY AFFAIRS, OFFICE OF MGMT. & BUDGET, 2011 REPORT TO CONGRESS ON THE BENEFITS AND COSTS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTITIES 16 (2011), available at http://www.whitehouse.gov/sites/default/files/omb/inforeg/2011-cb/2011-cba-report.pdf (concluding that rules from EPA produced sixty-two to eighty-four percent of the total monetized benefits and forty-six to fifty-three percent of the total monetized costs of all federal regulations-with most of the benefits and costs stemming from air quality rules).
95. These assumptions include the belief that there are a limited number of species at risk of extinction and that recovery programs are most effective when targeted to listed species. See Katrina Miriam Wyman, Rethinking the ESA to Reflect Human Dominion Over Nature, 17 N.Y.U. ENVTL. L.J. 490, 492-99 (2008) (noting the failings of the statute's listing process for at-risk species)
96. see also Holly Doremus, The Endangered Species Act: Static Law Meets Dynamic World, 32 WASH. U. J.L. & POL'Y 175, 182-83 (2010) (criticizing the ESA as implemented for its inflexibility).
97. For reform proposals, see John Charles Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 ENVTL. L. 501, 572-73 (1994), where the author suggests a shift from focusing on endangered species to endangered ecosystems.
98. National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. §§ 4321-4347 (2012))
99. see also Paul S. Weiland, Amending the National Environmental Policy Act: Federal Environmental Protection in the Twenty-First Century, 12 J. LAND USE & ENVTL. L. 275, 290-93 (1997).
100. Toxic Substances Control Act, Pub. L. No. 94-469, 90 Stat. 2003 (1976) (codified as amended at 15 U.S.C. §§ 2601-2692 (2012)).
101. Congress has not updated the regulatory and liability schemes governing oil and gas extraction offshore, despite technological change that has enabled offshore drilling in environments and at depths previously unimaginable. To offer an illustration of the difference between past congresses and more recent ones, compare Congress's response following the 1989 Exxon Valdez oil spill in Alaska, with Congress's reaction to the 2010 blowout in the Gulf of Mexico. After the Exxon Valdez spill, Congress passed the Oil Pollution Act of 1990, which required new regulations for oil tankers traveling in U.S. waters, adopted a liability regime for recovering damages, and created a national incident response system for coordinating the government's response to oil spills. See Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484 (codified as amended in scattered sections of 14 U.S.C., 16 U.S.C., 23 U.S.C., 26 U.S.C., 33 U.S.C., 43 U.S.C., 46 U.S.C., and 46 U.S.C. App. (2012)).
102. Yet in the wake of the 2010 Macondo well blowout-the worst oil spill in U.S. history-Congress took no steps to reform the existing regulatory and liability system, notwithstanding numerous reports, including one from a bipartisan commission created by the President, indicating that the system had become inadequate and outdated. See NAT. COMM'N ON THE BP DEEPWATER HORIZON OIL SPILL AND OFFSHORE DRILLING, DEEP WATER: THE GULF OIL DISASTER AND THE FUTURE OF OFFSHORE DRILLING-REPORT TO THE PRESIDENT 55-127, 249-87 (2011), available at http://www.gpo.gov/fdsys/pkg/GPOOILCOMMISSION/pdf/GPO-OILCOMMISSION.pdf (finding that numerous regulatory failures contributed to the spill and recommending legislation to address them).
103. Nor has Congress responded to concerns that onshore drilling requires additional oversight given technological advances, such as horizontal drilling and hydraulic fracturing, which have introduced new risks at a large scale. In fact, so-called "fracking" is exempt from federal regulation under the Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1860 (1974) (codified as amended at 42 U.S.C. §§ 300f-300j-9 (2012)
104. Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (codified as amended at 42 U.S.C. §§ 6901-6987 (2012)
105. Emergency Planning and Community Right-to-Know Act of 1986, Pub. L. No. 99-499, 100 Stat. 1728 (codified as amended at 42 U.S.C. §§ 11001-11050 (2012)
106. is regulated primarily by the states. See David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. PA. L. REV. 431, 447-52 (2013) (describing the federal regulatory regime governing fracking)
107. Jody Freeman & David Spence, Should the Federal Government Regulate Fracking?, WALL ST. J. (Apr. 14, 2013), http://online.wsj.com/news/articles/SB10001424127887323495104578314302738867078, archived at http://perma.cc/PW8W-TRVZ (debating the merits of federal versus state regulation).
108. Nuclear Waste Policy Act of 1982, Pub. L. No. 97-425, 96 Stat. 2201 (1983) (codified as amended at 42 U.S.C. §§ 10101-10270 (2012)).
109. The Nuclear Waste Policy Act set a deadline of 1998 for the federal government to take possession of the nation's nuclear waste, see 42 U.S.C. § 10222 (2012)
110. the Nuclear Waste Policy Amendments Act of 1987 created a process for establishing a permanent repository for high-level nuclear waste, see 42 U.S.C. §§ 10172-10175 (2012). The Nuclear Regulatory Commission's (NRC) and Department of Energy's (DOE) attempts to discharge their responsibilities under these laws have been fraught with legal and political conflict over the Yucca Mountain site. Most recently, litigation has ensued over whether DOE has discretion to withdraw its license application for approval of Yucca as a repository.
111. See In re Aiken County, 645 F.3d 428, 437-38 (D.C. Cir. 2011) (explaining that the NRC is required by statute to review DOE's license application to use Yucca Mountain as a repository). Congress has remained silent on these questions throughout this decades-long ordeal.
112. see also Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,516 (Dec. 15, 2009) (finding that "elevated concentrations of greenhouse gases in the atmosphere may reasonably be anticipated to endanger the public health and to endanger the public welfare of current and future generations").
113. The statute arguably reflects a conception of air pollutants as substances that do harm when inhaled or ingested since it focuses on establishing both safe concentrations of so-called "criteria" pollutants in the ambient air (national ambient air quality standards) and emissions limits for both toxic and criteria pollutants. See 42 U.S.C. §§ 7409-7412 (2012).
114. These programs are not well suited for GHG regulation. The CAA's other significant programs, however, which establish performance standards for both mobile and stationary sources of air pollution, may have the flexibility to address GHG emissions effectively. See 42 U.S.C. § 7411 (2012) (establishing the New Source Performance Standards program)
115. U.S.C. §§ 7470-7492 (2012) (formalizing the Prevention of Significant Deterioration program)
116. U.S.C. § 7521 (2012) (addressing mobile sources of air pollution). Still, as we explain below, they must be adapted to do so.
117. This consensus, however, may overstate the CAA's inflexibility. See Nathan Richardson & Arthur G. Fraas, Comparing the Clean Air Act and a Carbon Price 12-15 (Res. for the Future, Discussion Paper 13-13) (2013) (arguing that the CAA may not be as inflexible as economists suppose and might allow cost-effective GHG reductions, at least in the short term).
118. H.R. 2454, 111th Cong. (2009).
119. Following passage of the House bill, the Senate Committee on Environment and Public Works reported the Clean Energy Jobs and American Power Act, S. 1733, 111th Cong. (2010), which would have reduced GHG emissions twenty percent below 2005 levels by 2020. Republican committee members boycotted the markup, and the bill was not taken seriously by Senate leadership.
120. See Lisa Lerer, Senators Look Past Boxer Bill, POLITICO, Nov. 6, 2009, at 1 (describing opposition from both parties towards climate change legislation). Senators John Kerry (D-Mass.), Joe Lieberman (I-Conn.), and Lindsey Graham (R-S.C.) began working on a new piece of climate legislation, but failed to secure a floor vote in Congress.
121. see also Darren Samuelsohn, Closed-Door Talks Might Not Save Climate Bill, POLITICO, July 22, 2010, at 1 (discussing the decision to abandon a proposed climate change bill in 2010).
122. For example, Senators Maria Cantwell (D-Wash.) and Susan Collins (R-Me.) argued for a "cap-and-dividend" proposal, under which proceeds from the purchase of carbon credits would be returned to U.S. taxpayers in the form of an annual dividend. Maria Cantwell & Susan Collins, An Energy Bill That Pays Dividends, WASH. POST, June 18, 2010, at A27.
123. For example, Senator Tom Carper (D-Del.) proposed a multi-pollutant trading scheme. See Clean Air Act Amendments of 2010, S. 2995, 111th Cong. (2010).
124. See Clean Energy Standard Act of 2010, S. 80, 111th Cong. § 3(b)(1)(B) (2010). An alternative proposal by Senator Jeff Bingaman (D-N.M.), based on carbon intensity, would begin at twenty-four percent in 2015, ramping up to eighty-four percent by 2035. See Clean Energy Standard Act of 2012, S. 2146, 112th Cong. § 2(c)(2) (2012).
125. Carbon taxes were introduced in Congress but failed to gain traction. For example, the Save Our Climate Act of 2009, H.R. 594, 111th Cong. (2009), sponsored by Representative Pete Stark (D-Cal.-13) and three others, proposed a ten dollar per ton fee on carbon dioxide, increasing each year by ten dollars until climate objectives were met
126. America's Energy Security Trust Fund Act of 2009, H.R. 1337, 111th Cong. (2009), sponsored by Representative John Larson (D-Conn.-1) and twelve others, proposed a tax of fifteen dollars per ton, increasing by ten dollars each year; and the Raise Wages, Cut Carbon Act of 2009, H.R. 2380, 111th Cong. (2009), sponsored by Representatives Bob Inglis (R-S.C.-4), Jeff Flake (R-Ariz.-6), and Dan Lipinski (D-Ill.-3), proposed a fifteen-dollar per ton tax, increasing incrementally. None of the bills passed.
127. See Stop the War on Coal Act, H.R. 3409, 112th Cong. (2012).
128. For example, EPA has set national emission standards under section 112 of the CAA that will reduce both toxic pollutants and GHG emissions. See National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9304 (Feb. 16, 2012) (to be codified at 40 C.F.R. pts. 60, 63)
129. see also Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews, 77 Fed. Reg. 49,490, 49,539 (Aug. 16, 2012) (to be codified at 40 C.F.R. pts. 60, 63) (limiting emissions of volatile organic compounds, but in the process, requiring capture of methane, a potent GHG).
130. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,516 (Dec. 15, 2009) (to be codified at 40 C.F.R. ch. 1).
131. See Clean Air Act § 202(a), 42 U.S.C. § 7521(a) (2012).
132. Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25,324 (May 7, 2010) (to be codified at 40 C.F.R. pts. 85, 86, and 600 and 49 C.F.R. pts. 531, 533, 536, 537, and 538).
133. That proposal reflected the pains the two agencies took to ensure that every auto manufacturer, regardless of its product mix, could meet the stringent new requirements. See Jody Freeman, The Obama Administration's National Auto Policy: Lessons from the "Car Deal," 35 HARV. ENVTL. L. REV. 343 346-58 (2011) (describing the unique rulemaking process and the variety of compliance flexibilities made available by the government).
134. For a discussion of the implications of this situation, see Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514, 31,533 ( June 3, 2010) (to be codified at 40 C.F.R. pts. 51, 52, 70, and 71) (projecting the number of sources expected to require permits under the PSD and Title V programs and proposing to tailor the program initially to the largest sources).
135. See Tailoring Rule, 75 Fed. Reg. at 31,550-31,551 (noting that since 1977, EPA has interpreted the PSD program to apply to any air pollutant subject to regulation).
136. The Tailoring Rule also specified a lower threshold-75,000 TPY-for so-called "anyway" sources: those sources required to obtain permits "anyway" because of their emission of conventional pollutants. See Tailoring Rule, 75 Fed. Reg. at 31,540-31,541 (exempting smaller sources but otherwise allowing the Clean Air Act's Prevention of Significant Deterioration program to begin to require "best available control technology" to control GHGs at new and modified sources)
137. see also EPA, OFFICE OF AIR QUALITY PLANNING & STANDARDS, EPA-457/B-11-001, PSD AND TITLE V PERMITTING GUIDANCE FOR GREENHOUSE GASES 17-46 (2011) (describing how states should determine "best available control technology" for new and modified sources).
138. See Tailoring Rule, 75 Fed. Reg. at 31,541-31,549.
139. See Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012). The litigation challenged four rules that EPA promulgated under the CAA: (1) the Endangerment Finding, (2) the Tailpipe Rule, (3) the Timing Rule, and (4) the Tailoring Rule. In upholding the rules set forth by EPA, the court dismissed challenges to the endangerment finding and the Tailpipe Rule on their merits and found that petitioners lacked standing to challenge the Timing Rule and the Tailoring Rule. Id. at 113-114.
140. Petitioners' Joint Opening Brief at 14-23, Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (No. 09-1322).
141. On this view, Congress meant to exempt GHGs from the phrase "any air pollutant" in the definition of major facility (for purposes of the program's applicability) and to exclude them from the requirement that BACT apply to "each pollutant subject to regulation" under the CAA (for purposes of the program's coverage). See Clean Air Act § 169(1), 42 U.S.C. § 7479(1) (2012) (defining "major emitting facility")
142. Petitioners' Joint Opening Brief at 18, Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (No. 09-1322).
143. Coal. for Responsible Regulation, 684 F.3d at 136.
144. See Order on Petitions for Rehearing En Banc, Coal. for Responsible Regulation, Inc. v. EPA, No. 09-1322, 2012 WL 6621785, at ∗14-16 (D.C. Cir. Dec. 20, 2012) (Kavanaugh, J., dissenting).
145. See Utility Air Regulatory Grp. v. EPA, No. 12-1146, slip op. at 2 (U.S. June 23, 2014) (noting that the Court had been asked to "decide whether it was permissible for EPA to determine that its motor-vehicle greenhouse-gas regulations automatically triggered permitting requirements under the [CAA] for stationary sources that emit greenhouse gases")
146. Jody Freeman, Symposium: Soft Landings and Strategic Choices, SCOTUSBLOG (Feb. 5, 2014, 10:58 AM), http://www.scotusblog.com/2014/02/symposium-soft-landings-and-strategic-choices/, archived at http://perma.cc/J66U-ZXWS (explaining how EPA might have interpreted the program to exclude GHGs and apply only to NAAQS pollutants without losing too much).
147. Utility Air Regulatory Grp., No. 12-1146, slip op. at 15-16 ("[T]here is no insuperable textual barrier to EPA's interpreting 'any air pollutant' in the permitting triggers of PSD and Title V to encompass only pollutants emitted in quantities that enable them to be sensibly regulated at the statutory thresholds, and to exclude those atypical pollutants that, like greenhouse gases, are emitted in such vast quantities that their inclusion would radically transform those programs and render them unworkable as written.").
148. Robert Barnes, Justices: EPA Can Regulate Emissions, WASH. POST, June 24, 2014, at A1.
149. Brief for the Federal Respondents at 33-34, Utility Air Regulatory Grp. v. EPA, No. 12-1146 (Jan. 21, 2014).
150. Utility Air Regulatory Grp., No. 12-1146, slip op. at 23
151. See Massachusetts v. EPA, 549 U.S. 497 (2007)
152. Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011).
153. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,830 (proposed June 18, 2014) (to be codified at 40 C.F.R. pt. 60)
154. Standards of Performance for Greenhouse Gas Emissions From New Power Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1462-1463 (proposed Jan. 8, 2014) (to be codified at 40 C.F.R. pts. 60, 70, 71, and 98).
155. Clean Air Act § 111(b), 42 U.S.C. § 7411 (2012).
156. President Obama announced that he would direct EPA to establish a standard for new power plants and to set standards for existing power plants. Michael O'Brien, Obama Aims to Sidestep Congress with New Initiatives to Reduce Carbon Emissions, NBC NEWS ( June 25, 2013, 3:11 AM), http://nbcpolitics.nbcnews.com/-news/2013/06/25/19119744-obama-aims-to-sidestep-congress-with-new-initiatives-to-reduce-carbonemissions?lite, archived at http://perma.cc/6QSJ-HMTY.
157. See Clean Air Act § 111(a), 42 U.S.C. § 7411(a)(1) (2012) (defining "standard of performance")
158. Clean Air Act § 111(b), 42 U.S.C. § 7411(b) (2012) (requiring the EPA Administrator to set performance standards for categories of stationary sources).
159. See Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1463 (proposed Jan. 8, 2014) (to be codified at 40 C.F.R. pts. 60, 70, 71, 98) [hereinafter Second Proposed Power Plant Rule]
160. discussing technical feasibility and citing Sierra Club v. Costle, 657 F.2d 298, 347 (D.C. Cir. 1981), in support of EPA's authority to set technology-forcing standards.
161. Compare Clean Air Act § 111(b), 42 U.S.C. § 7411(b)(1)(B) (2012) (requiring standards for source "categories")
162. with Clean Air Act § 169, 42 U.S.C. § 7479(1) (2012) (defining individual "major emitting facilities" subject to preconstruction review under section 165).
163. U.S.C. § 7479(3) (2012). Note that as EPA sets new NSPS, EPA also establishes a new floor for BACT.
164. Compared with the NSPS program, the PSD program is far less uniform. State administration allows for greater variation not just across states, but also across sources in the same industrial category, since state regulators establish BACT on a case-by-case basis through plantlevel analysis. See 42 U.S.C. § 7475(d) (2012) (describing the state permitting process). PSD is also small in scope; the states generally entertain fewer than three hundred PSD permit applications each year.
165. See RACT/BACT/LAER Clearinghouse, EPA, http://cfpub.epa.gov/rblc/ (last visited Oct. 3, 2014), archived at http://perma.cc/GC74-SBDN.
166. See generally 40 C.F.R. pt. 60 (2013).
167. See Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units, 77 Fed. Reg. 22,392 (proposed Apr. 13, 2012) (to be codified at 40 C.F.R. pt. 60) [hereinafter First Proposed Power Plant Rule].
168. See Ralph Cavanagh, Reinventing Competitive Procurement of Electricity Resources, ELECTRICITYPOLICY. COM, http://electricitypolicy.com/cavanagh-10-2-10-correct.pdf (last visited Oct. 3, 2014), archived at http://perma.cc/4DV2-CLL3 (explaining that U.S. utilities have announced the intention to invest up to $2 trillion in "resource procurement and integration" over the next two decades).
169. See, e.g., Comments Submitted by the American Public Power Association, on Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units ( June 25, 2012) (on file at Docket No. EPA-HQ-OAR-2011-0660), available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2011-0660-10039
170. Comments Submitted by The National Rural Electric Cooperative Association, on Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units (June 25, 2012) (on file at Docket No. EPA-HQ-OAR-2011-0660), available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2011-0660-9916.
171. Industry argues that this standard is a major obstacle to the construction and development of any new coal-fired generation capacity because, as EPA concedes, the limits cannot be achieved by a new coal-fired EGU using presently available technology. See The American Energy Initiative, Part 25: EPA's Proposed Greenhouse Gas New Source Performance Standards for Utilities and the Impact this Regulation Will Have on Jobs: Hearing Before the Subcomm. on Energy & Power of the H. Comm. On Energy and Commerce, 111th Cong. 16 (2012)
172. A number of consent decrees now require the agency to promulgate additional standards for GHG pollution from other new sources, such as oil and gas refineries. See, e.g., Settlement Agreement Between New York et al., and EPA (2010), available at http://www2.epa.gov/sites/production/files/2013-09/documents/refineryghgsettlement.pdf (announcing that EPA has agreed to set GHG New Source Performance Standards for refineries).
173. Electricity generation accounts for 38.6% of U.S. carbon dioxide emissions from energy. See EPA, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990-2012 tbl.3-1 (2014), available at http://www.epa.gov/climatechange/Downloads/ghgemissions/US-GHGInventory-2014-Chapter-3-Energy.pdf.
174. For example, section 111 New Source Performance Standards generally apply only to categories of new and "modified" sources. See Clean Air Act § 111, 42 U.S.C. §§ 7411(a)-(b) (2012). The CAA's New Source Review program similarly applies only to new and modified sources in attainment zones.
175. See Clean Air Act §§ 165, 169, 42 U.S.C. §§ 7475, 7479 (2012)
176. That is, unless they modify their equipment in ways that significantly increase emissions, in which case they trigger "new source review." See Richard L. Revesz, Op-Ed., Old Power Plants Need New Rules, N.Y. TIMES (Mar. 29, 2012), http://www.nytimes.com/2012/03/29/opinion/oldpower-plants-need-new-rules.html, archived at http://perma.cc/ZCH2-6DLU
177. see also Jonathan Remy Nash & Richard L. Revesz, Grandfathering and Environmental Regulation: The Law and Economics of New Source Review, 101 NW. U. L. REV. 1667, 1688 (2007) (describing EPA's policies requiring a New Source Review when a modification would cause a large net increase in emissions).
178. The average age of U.S. coal-fired generation plants is forty-three years. See Steven Mufson, Coal's Burnout, WASH. POST, Jan. 2, 2011, at G1.
179. See id.; see also EPA, Overview of Greenhouse Gases: Carbon Dioxide Emissions, http://www.epa.gov/climatechange/ghgemissions/gases/co2.html (last visited Oct. 3, 2014), archived at http://perma.cc/8L3B-CUQ7.
180. Indeed, there are plausible arguments that by setting a national standard for GHG pollution and requiring states to submit implementation plans, EPA could achieve deep, nationwide emissions reductions while allowing states to use trading schemes to do so. See, e.g., Steven D. Cook, Emissions Trading: EPA Can Use Clean Air Act Authority to Establish Carbon Dioxide Program, 39 Env't Rep. (BNA) 304 (Feb. 15, 2008) (describing former EPA general counsel Donald Elliott's proposal that ambient quality standards could be adapted to GHGs if EPA established a percentage reduction target instead of setting a numerical concentration limit).
181. EPA has said NAAQS are inappropriate because the concentration of global pollutants in the atmosphere cannot be controlled exclusively by the United States. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354, 44,363-44,364 (proposed July 30, 2008) (to be codified at 40 C.F.R ch. 1). A petition requesting that EPA set a NAAQS for GHGs is still pending.
182. See Petition from Center for Biological Diversity & 350.org, to EPA (Dec. 2, 2009), available at http://www.biologicaldiversity.org/programs/climate-law-institute/global-warming-litigation/clean-air-act/pdfs/Petition-GHG-pollution-cap-12-2-2009.pdf (requesting that EPA establish a NAAQS for carbon dioxide at no greater than 350 ppm).
183. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,830, 34,879 (proposed June 18, 2014) (to be codified at 40 C.F.R. pt. 60) (describing EPA guidelines and relevant judicial decisions).
184. See Carbon Pollution Emission Guidelines, 79 Fed. Reg. at 34,893-34,894.
185. See Press Release, Natural Res. Def. Council, Innovative NRDC Plan Featuring Federal-State Partnership Saves Americans More than $25 Billion in Climate and Health Costs While Unleashing Billions in Clean Energy Investments (Dec. 4, 2012), available at http://www.nrdc.org/media/2012/121204.asp, archived at http://perma.cc/7U7R-F597 (describing a "groundbreaking proposal to sharply cut carbon pollution from America's power plants" by "setting system-wide standards, rather than smokestack-by-smokestack ones").
186. See Carbon Pollution Emission Guidelines, 79 Fed. Reg. at 34,845.
187. See Brad Plumer, How the EPA's New Climate Rule Actually Works-in 8 Steps, VOX, http://www.vox.com/2014/6/4/5779052/how-to-figure-out-which-states-get-hit-hardest-by-obamasclimate-rule (last updated June 4, 2014, 4:25 PM), archived at http://perma.cc/DUH4-W7HR
188. See also EPA, DOCKET ID NO. EPA-HQ-OAR-2013-0602, TECHNICAL SUPPORT DOCUMENT (TSD) FOR THE CAA SECTION 111(D) EMISSION GUIDELINES FOR EXISTING POWER PLANTS 7 (2014), available at http://www2.epa.gov/sites/production/files/2014-06/documents/20140602tsdgoal-computation.pdf.
189. See Carbon Pollution Emission Guidelines, 79 Fed. Reg. at 34,835-34,837.
190. See KATE KONSCHNIK & ARI PESKOE, HARVARD LAW SCH. ENVTL. LAW PROGRAM, EFFICIENCY RULES: THE CASE FOR END-USE ENERGY EFFICIENCY PROGRAMS IN THE SECTION 111(D) RULE FOR EXISTING POWER PLANTS 4-5 (2014), available at http://blogs.law.harvard.edu/environmentallawprogram/files/2013/03/The-Role-of-Energy-Efficiency-inthe-111d-Rule.pdf (discussing previous section 111(d) regulations).
191. The only two section 111(d) performance standards that have explicitly authorized states to adopt emissions trading plans for facilities are the Clean Air Mercury Rule, Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606 (May 18, 2005) (to be codified at 40 C.F.R. pts. 60, 72, and 75) [hereinafter CAMR], which was struck down, and the emissions guidelines for large municipal waste combustors
192. Emission Guidelines for Municipal Waste Combustor Metals, Acid Gases, Organics, and Nitrogen Oxides, 40 C.F.R. § 60.33b(d) (2012).
193. See Jonas Monast et al., Regulating Greenhouse Gas Emissions From Existing Sources: Section 111(d) and State Equivalency, 42 Envtl. L. Rep. (Envtl. Law Inst.) 10,206, 10,208-09 (2012).
194. See Legal Memorandum for Proposed Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units 9-10 (2014), available at http://www2.epa.gov/sites/production/files/2014-06/documents/20140602-legal-memorandum.pdf.
195. See New Jersey v. EPA, 517 F.3d 574, 583 (D.C. Cir. 2008), cert. dismissed, 555 U.S. 1162 (2009), and cert. denied, 555 U.S. 1169 (2009).
196. The Court has defined the term "standard" to include more than simply numerical emission levels for specific units like engines, extending it in one case to cover state imposed fleet purchase requirements based on emission characteristics of the engines. But this was in the context of interpreting the reach of a CAA provision preempting state "standards" for motor vehicle engine emissions. See Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 255 (2004) ("A command, accompanied by sanctions, that certain purchasers may buy only vehicles with particular emission characteristics is as much an 'attempt to enforce' a 'standard' as a command, accompanied by sanctions, that a certain percentage of a manufacturer's sales volume must consist of such vehicles."). Writing for the Court in an 8-1 decision, Justice Scalia began by looking at the dictionary, defining "standard" as "that which 'is established by authority, custom, or general consent, as a model or example; criterion; test.'" Id. at 252-53
197. WEBSTER'S SECOND NEW INTERNATIONAL DICTIONARY 2455 (1945).
198. Depending on the content of the final rule, there are other matters that could invite legal challenge, such as EPA's approach to enforcement. EPA has asked for comment on how to hold third parties (such as end use energy efficiency providers) accountable for fulfilling their obligations under state plans. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,830, 34,902-34,903 (proposed June 18, 2014) (to be codified at 40 C.F.R. pt. 60).
199. See generally Adam M. Kushner & Judith E. Coleman, Lessons from Mercury: Ensuring Legal Certainty for New GHG Performance Standards for Existing Fossil Fuel Plants (Oct. 24, 2013) (unpublished manuscript) (on file with author).
200. In American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), which held that federal common law nuisance claims for harms caused by GHG pollution are precluded by the CAA, the Court described EPA's authority to set standards for existing power plants under section 111(d) and then specifically described the exception for pollutants regulated under section 112: "There is an exception: EPA may not employ § 7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§ 7408-7410, or the 'hazardous air pollutants' program, § 7412." 131 S. Ct. at 2537 & n.7. Yet this was in a footnote, and the question of how to interpret the exception was not before the Court. In addition, the case was decided before EPA issued its section 112(d) rule setting toxics standards for power plants.
201. See National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9304 (Feb. 16, 2012).
202. See Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants from Electric Utility Steam Generating Units and the Removal of Coal- and Oil-Fired Electric Utility Steam Generating Units from the Section 112(c) List, 70 Fed. Reg. 15,994 (Mar. 29, 2005) (to be codified at 40 C.F.R. pt. 63).
203. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, § 108(g), § 302(a), 104 Stat. 2399, 2467, 2574). "These changes were not discussed in committee hearings, in floor debates, or in conference. Ultimately, both amendments to Section 111(d) were contained in the legislation signed by the first President Bush. The House Amendment is located in Section 108 of the Statutes at Large (under 'Miscellaneous Guidance'); the Senate Amendment is found 107 pages later (under 'Conforming Amendments')."
204. Kate Konschnik, EPA's 111(d) Authority-Follow Homer and Avoid the Sirens, LEGAL PLANET (May 28, 2014), http://legal-planet.org/2014/05/28/guest-blogger-kate-konschnik-epas-111dauthority-follow-homer-and-avoid-the-sirens/, archived at http://perma.cc/5W4Y-BLJF.
205. Revision of December 2000 Regulatory Finding, 70 Fed. Reg. at 16,030 ("The codifier's notes to this section of the Official Committee Print of the executed law state that the Senate amendment 'could not be executed' because of the other amendment to section 111(d) contained in the same Act. The United States Code does not control here, however. The Statutes at Large constitute the legal evidence of the laws, where, as here, Title 42 of the United States Code, which contains the CAA, has not been enacted into positive law.").
206. On August 1, 2014, West Virginia and eleven other states filed a suit challenging EPA's authority to promulgate carbon rules under section 111(d) of the CAA. See Petition for Review at 1-2, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Aug. 1, 2014)
207. see also Petition for Extraordinary Writ at 5, 29, In re Murray Energy Corp., No. 14-1112 (D.C. Cir. filed June 18, 2014) (asking the court to prohibit EPA from continuing with its rulemaking, still in the proposal stage, for lack of authority to regulate existing sources). While such suits usually do not proceed until rules are finalized, the D.C. Circuit on September 18, 2014, ordered EPA to file a response within thirty days and will permit Murray Energy to respond within fourteen days, if it so chooses.
208. Order, In re Murray Energy Corp., No. 14-1112 (D.C. Cir. Sept. 18, 2014).
209. See Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 866 (1984).
210. See Chevron, 467 U.S. at 866.
211. See Michael B. Gerrard, Legal Challenges to Obama Administration's Clean Power Plan, N.Y. L.J., Sept. 11, 2014, at 3 (identifying this and other key legal issues).
212. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,830, 34,885-34,886 (June 18, 2014) (to be codified at 40 C.F.R. pt. 60) (noting that the CAA does not define "system" but suggesting the Oxford dictionary definition as "[a] set of things working together as parts of a mechanism or interconnecting network" and then claiming that "anything that reduces the emissions of affected sources may be considered a 'system of emission reduction' for those sources").
213. The authors thank Richard Lazarus for raising the question about the applicability of this version of BSER to other pollutants. See E-mail from Richard Lazarus, Howard & Katherine Aibel Professor of Law, Harvard Law Sch., to Jody Freeman, Archibald Cox Professor of Law, Harvard Law Sch., and Kate Konschnik, Policy Director, Envtl. Law Program, Harvard Law Sch. ( June 2, 2014) (on file with author).
214. Cf. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,830, 34,901 (proposed June 18, 2014) (to be codified at 40 C.F.R. pt. 60) (discussing enforcement options).
215. For example, on the question whether EPA is inappropriately regulating the energy supply, the government may argue that because air pollution standards necessarily affect the cost of supply, they have always influenced choices about the energy mix, including whether to retire or retrofit units, or switch fuel sources. Thus the distinction between environmental and energy policy is somewhat artificial. See Jody Freeman, Why I Worry About UARG, 39 HARV. ENVTL. L. REV. (forthcoming 2014). EPA might also defend its reliance on energy efficiency in this context but not others as justified by the absence of readily available, cost-effective technological options for controlling GHGs at existing plants. And there are no doubt sensible limiting principles that could constrain the agency's application of "best system" to an interconnected physical network like the electricity system.
216. The government will likely rely for support on the Supreme Court's decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, slip op. at 29, 32 (U.S. Apr. 29, 2014), in which the Court upheld EPA's cross-state air pollution rule in a 6-2 decision. The Court deferred to the agency's methodology for allocating emissions reductions among states based largely on cost as reasonable, noting that the agency "must have leeway in fulfilling its statutory mandate."
217. Yet industry will likely draw heavily on the Court's decision in Utility Air Regulatory Group v. EPA, No. 12-1146, slip op. at 29 (U.S. June 23, 2014), discussed supra, at notes 96-108 and in accompanying text, in which the Court rejected EPA's interpretation of the CAA's "prevention of significant deterioration" program as triggered by GHG emissions.
218. Perhaps not coincidentally, it was about this time that the widening of the ideological divide in Congress began to accelerate. See Appendix, fig.A-8 (depicting the trend using the Poole and Rosenthal data through the increasing slope of the "Republicans" line and the decreasing slope of the "Democrats" line around 1992).
219. Federal Power Act, ch. 687, 49 Stat. 1676 (codified as amended at 16 U.S.C. §§ 791-828c (2012)).
220. See 16 U.S.C. § 824d(a)-(b).
221. Following well-established ratemaking principles that predated the Federal Power Act, FERC set rates at a level that would enable utilities to earn a reasonable return on prudent investments and recover reasonable costs. The seminal case describing the application of the "just and reasonable" standard is Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 605-06 (1944), in which the Court declined to overturn a ratemaking decision on the grounds that the commission had underestimated elements of the utility's costs.
222. These entities wanted to be able to purchase power from other suppliers and to use the IOUs' transmission lines. FERC, however, had been loath to order IOUs to "wheel" power for third parties. See Otter Tail Power Co. v. United States, 410 U.S. 366, 378-79 (1973) (holding that the regulated industries exemption does not insulate IOUs from all antitrust liability).
223. Economists began to argue that while the management of a network (in the case of electricity, the transmission and distribution "wires" business) was a natural monopoly, the sale of energy was not. To the contrary, there could be efficiency gains by unbundling the wires business from the sale of electricity and introducing competition to the latter part of the business. See, e.g., Stephen Breyer, Analyzing Regulatory Failure: Mismatches, Less Restrictive Alternatives, and Reform, 92 HARV. L. REV. 547, 597-603 (1979) ("To decide that a firm is a natural monopolist with respect to one of its products and that it should be regulated does not decide the extent to which classical regulation should apply to other, related products of the firm.").
224. Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (codified as amended in scattered sections of 7 U.S.C., 15 U.S.C., 16 U.S.C., 30 U.S.C., 42 U.S.C., and 43 U.S.C. (2012)).
225. PURPA authorized FERC to order wheeling, but only if no "uncompensated economic loss" or "undue burden" on the transmission owner would result. If ordering wheeling would jeopardize existing relationships (including, presumably, the loss by the IOU of a valuable customer), then FERC could not order wheeling. See Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117, 3138-39
226. repealed by Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 2916.
227. Indeed, the federal courts had interpreted PURPA to prohibit FERC from ordering open access to transmission lines solely to enhance competition. See, e.g., Fla. Power & Light Co. v. FERC, 660 F.2d 668, 676 (5th Cir. Unit B Nov. 1981) (holding that FERC "lacks the authority to require electric utilities to provide wheeling even on a reasonable request")
228. N.Y. Elec. & Gas Corp. v. FERC, 638 F.2d 388, 402 (2d Cir. 1980) (holding that the public interest and enhancement of competition cannot alone compel wheeling).
229. See, e.g., Dartmouth Power Assocs. Ltd. P'ship, 53 F.E.R.C. 61,117 (1990) (authorizing a nonutility generator to charge market-based rates based upon a determination that the generator did not possess market power in the relevant market).
230. See Jim Rossi, Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry, 1994 WIS. L. REV. 763, 794-95 (explaining that FERC imposed open-access terms as a condition of approval for market-based rates and used its merger authority to impose these terms on a case-by-case basis).
231. See Energy Policy Act of 1992, Pub. L. No. 102-486, § 711, 106 Stat. 2776, 2905-10.
232. In the Energy Policy of Act 1992, Congress also helped to facilitate competition by removing some restrictions on the growth of the independent power industry imposed by the Public Utility Holding Act of 1935. See ADAM VANN, CONG. RESEARCH SERV., RL 33739, THE REPEAL OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 (PUHCA) AND ITS IMPACT ON ELECTRIC AND GAS UTILITIES 4 (2006) (explaining that the Energy Policy Act of 1992 created an exemption from PUHCA for wholesale electricity generators).
233. Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, 61 Fed. Reg. 21,540 (May 10, 1996) (to be codified at 18 C.F.R. pts. 35, 385). Order 888 required transmission line owners to separate the firm's transmission functions from its electricity sales functions. It did not require full legal separation of business units.
234. A companion order to Order No. 888, Order No. 889, specifies the specific terms according to which transmission line owners must make transmission services available on an open-access, nondiscriminatory basis. See Open Access Same-Time Information System (Formerly Real-Time Information Networks) and Standards of Conduct, 61 Fed. Reg. 21,737, 21,740-41 (May 10, 1996) (to be codified at 18 C.F.R. pt. 37).
235. While buyers on wholesale markets were always free to purchase power from third-party buyers, Order 888's requirement that transmission line owners treat transmission as a common carrier service, open to all on equal terms, led some integrated IOUs to spin off their generation assets and to acquire more power on wholesale markets from third parties. See, e.g., Paul L. Joskow, Transmission Policy in the United States, 13 UTIL. POL'Y 95, 103 (2005) (describing Orders 888 and 889 as the "primary federal foundation for the obligations imposed on transmission owners to provide to third parties unbundled transmission service, ancillary network support services, and information about the availability of these services to support both wholesale and retail competition").
236. Theodore Lowi has posited that it is easier for Congress to legislate distributive policies, because they promote logrolling and other forms of coalition building, while regulatory policies, which involve winners and losers, are inherently more divisive. Theodore J. Lowi, Four Systems of Policy, Politics, and Choice, 32 PUB. ADMIN. REV. 298, 299-300 (1972).
237. See Pub. L. No. 109-58, 119 Stat. 594 (codified as amended in scattered sections of 5 U.S.C., 7 U.S.C., 15 U.S.C., 16 U.S.C., 25 U.S.C., 30 U.S.C., and 42 U.S.C. (2012)). Title XIII of the Energy Policy Act of 2005 provided tax incentives relating to electricity infrastructure, domestic fossil fuel security, conservation and energy efficiency, and alternative motor vehicles and fuels.
238. See Pub. L. No. 110-140, 121 Stat. 1492 (codified as amended at 42 U.S.C. §§ 17001-17386 (2012)).
239. The Mobile-Sierra doctrine stands for the proposition that freely negotiated rates are presumed to be just and reasonable under both the FPA and NGA. See Fed. Power Comm'n v. Sierra Pac. Power Co., 350 U.S. 348, 355 (1956)
240. United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332, 344-45 (1956).
241. Although the 1992 Energy Policy Act ratified FERC's Open Access Order, it did not go so far as to authorize market rates explicitly. See Energy Policy Act of 1992, Pub. L. No. 102-486, §§ 721-722, 106 Stat. 2776, 2915-19 (codified as amended at 16 U.S.C. §§ 824j-824k (2012)).
242. FERC's previous jurisprudence interpreting the "just and reasonable" standard stressed that rates must reflect "a balancing of the investor and the consumer interests," but emphasizing the fairness of the end result rather than any particular formula for the determination of rates. See, e.g., Fed. Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944) (reinforcing a focus on the outcome rather than "various permissible ways in which any rate base on which the return is computed might be arrived at").
243. See Michael W. Lynch & Adrian Moore, Power Tripped, REASON, June 2001, at 32.
244. In petitions to FERC after the crisis, buyers on California's wholesale market claimed to have been overcharged by more than $9 billion. FERC ultimately decided that the figure was about half that. FED. ENERGY REGULATORY COMM'N, THE COMMISSION'S RESPONSE TO THE CALIFORNIA ELECTRICITY CRISIS AND TIMELINE FOR DISTRIBUTION OF REFUNDS 14 (2005), available at http://www.ferc.gov/legal/staff-reports/comm-response.pdf.
245. FERC has made a distinction between "economic withholding" and "physical withholding" of power on spot markets. Economic withholding refers to a seller's practice of charging an exorbitantly high price for a product simply because the seller knows that the product is scarce and that buyers have no choice but to take it at the offered price; physical withholding refers to a seller's practice of withholding from the market generation from one of the seller's generating plants to create sufficient scarcity that the seller could demand exorbitant rates for power from its other plants. See Order Establishing Refund Effective Date and Proposing to Revise Market-Based Rate Tariffs and Authorizations, 97 F.E.R.C. 61,220 (2010).
246. For examples, see generally FED. ENERGY REGULATORY COMM'N, FINAL REPORT ON MANIPULATION IN WESTERN MARKETS (2003), available at http://www.ferc.gov/industries/electric/indus-act/wec.asp, which describes how some California market participants manipulated the market by scheduling phony spot market transactions designed to create congestion in the system so that they could be compensated for relieving congestion by forgoing those transactions.
247. David B. Spence & Robert Prentice, The Transformation of American Energy Markets and the Problem of Market Power, 53 B.C. L. REV. 131, 159-64 (2012).
248. See Order Amending Market-Based Rate Tariffs and Authorizations, 105 F.E.R.C. 61,218 (2003), reh'g denied, 107 F.E.R.C. 61,175 (2004).
249. Remedying Undue Discrimination Through Open Access Transmission Service and Standard Electricity Market Design, Notice of Proposed Rulemaking, 67 Fed. Reg. 55,452 (proposed Aug. 29, 2002) (to be codified at 18 C.F.R. pt. 35).
250. Order Terminating Proceeding, 70 Fed. Reg. 43,140 ( July 26, 2005).
251. Energy Policy Act of 2005, Pub. L. No. 109-58, § 315, 119 Stat. 594, 691 (codified at 15 U.S.C. § 717c-1 (2012)).
252. See, e.g., COMPETE, RTO AND ISO MARKETS ARE ESSENTIAL TO MEETING OUR NATION'S ECONOMIC, ENERGY AND ENVIRONMENTAL CHALLENGES 1-2 (2010), available at http://www.competecoalition.com/files/RTO%20White%20Paper-update%2010.6.10.pdf (describing the benefits of competitive energy markets, including lower prices for consumers).
253. See Matthew L. Wald, Giving the Grid Some Backbone, SCI. AM. EARTH 3.0, Mar. 2009, at 52, 56 (describing the possibility for a new system of high-voltage lines controlled by state-of-the art transmission centers)
254. see also OFFICE OF ELEC. TRANSMISSION & DISTRIBUTION, U.S. DEP'T OF ENERGY, "GRID 2030:" A NATIONAL VISION FOR ELECTRICITY'S SECOND 100 YEARS 11-15 (2003), available at http://www.ferc.gov/eventcalendar/files/20050608125055-grid-2030.pdf (discussing possible technologies to expand delivery systems).
255. According to the Energy Information Administration, in the decade between 2000 and 2011, renewable generating capacity grew from about sixteen gigawatts to more than sixty-one gigawatts. U.S. ENERGY INFO. ADMIN., ELECTRIC POWER ANNUAL 2011 tbl.4.2 B (2013), available at http://www.eia.gov/electricity/annual/archive/2011/pdf/epa.pdf.
256. The best onshore wind resources are located in the upper Midwest and Great Plains, while the best solar resources are located in the desert Southwest. See Wind Maps, NAT'L RENEWABLE ENERGY LAB., http://www.nrel.gov/gis/wind.html (last visited Oct. 3, 2014), archived at http://perma.cc/UC3K-VEWU
257. Solar Maps, NAT'L RENEWABLE ENERGY LAB., http://www.nrel.gov/gis/solar.html (last visited Oct. 3, 2014), archived at http://perma.cc/5VCZ-M2T9.
258. For a summary of the improving competitiveness of renewable resources, see Benjamin K. Sovacool & Charmaine Watts, Going Completely Renewable: Is it Possible (Let Alone Desirable)?, ELECTRICITY J., May 2009, at 95, 98-99.
259. See, e.g., Diane Cardwell, Renewed Tax Credit Buoys Wind-Power Projects, N.Y. TIMES, Mar. 21, 2013, at B3 (describing an increase in development of wind projects in response to Congress's renewal of the production tax credit in January 2013).
260. Generally, renewable portfolio standards (RPSs) require that electricity retailers secure a specified percentage of electricity they sell from renewable sources. State RPSs differ widely, specifying different goals and defining qualified "renewable" sources differently. For a good summary of state standards and their strengths and weaknesses, see Lincoln L. Davies, Power Forward: The Argument for a National RPS, 42 CONN. L. REV. 1339 (2010).
261. See generally DSIRE: Database of State Incentives for Renewables & Efficiency, N.C. STATE UNIV., http://www.dsireusa.org/, archived at http://perma.cc/D44G-QN6Z (last visited Oct. 3, 2014) (providing an unofficial review of state standards and incentives).
262. The smart grid holds promise for almost every part of the electricity market, including generation, distribution, and consumption, as well as transmission. For a full description of the potential benefits of a smarter electric grid, see PETER FOX-PENNER, SMART POWER: CLIMATE CHANGE, THE SMART GRID, AND THE FUTURE OF ELECTRIC UTILITIES (2010).
263. See generally NAT'L ENERGY TECH. LAB., U.S. DEP'T OF ENERGY, DOE/NETL-2010/1413, UNDERSTANDING THE BENEFITS OF THE SMART GRID 3 (2010), available at http://www.netl.doe.gov/File%20Library/research/energy%20efficiency/smart%20grid/whitepapers/06-18-2010-Understanding-Smart-Grid-Benefits.pdf (outlining the benefits of the smart grid).
264. see also RICHARD W. CAPERTON & MATT KASPER, CTR. FOR AM. PROGRESS, RE-ENERGIZE REGIONAL ECONOMIES WITH NEW ELECTRIC TRANSMISSION LINES 4 (2011), available at http://cdn.americanprogress.org/wp-content/uploads/issues/2011/12/pdf/transmission-lines.pdf (suggesting that the United States needs to invest at least $298 billion dollars to upgrade the grid by 2030)
265. Jeff St. John, Tres Amigas Raises Money for US Grid Super-Hub, GREENTECH MEDIA (Nov. 9, 2011), http://www.greentechmedia.com/articles/read/tres-amigas-raises-money-for-u.s.-grid-super-hub/archived at http://perma.cc/LY4Y-AHJX.
266. See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988) ("[W]e conclude that [the state statute] regulates in a field the NGA has occupied to the exclusion of state law, and that it therefore is pre-empted.").
267. Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, 61 Fed. Reg. 21,540, 21,591-21,597 (May 10, 1996)
268. See Joel B. Eisen, Regulatory Linearity, Commerce Clause Brinksmanship, and Retrenchment in Electric Utility Deregulation, 40 WAKE FOREST L. REV. 545, 573-82 (2005).
269. See Regional Transmission Organizations (RTO)/Independent System Operators (ISO), FERC, http://ferc.gov/industries/electric/indus-act/rto.asp (last updated Aug. 26, 2014), archived at http://perma.cc/7U93-TRJ3 (showing current ISOs/RTOs).
270. See Ashley C. Brown & Jim Rossi, Siting Transmission Lines in a Changed Milieu: Evolving Notions of the "Public Interest" in Balancing State and Regional Considerations, 81 U. COLO. L. REV. 705, 748-70 (2010) (discussing how recent developments have challenged the definition of "public interest")
271. Richard J. Pierce, Environmental Regulation, Energy and Market Entry, 15 DUKE ENVTL. L. & POL'Y F. 167 (2005) (discussing three specific contexts-gasoline production, liquefied natural gas importation, and electricity transmission-where environmental regulation methods conflict with energy policy goals)
272. Cassandra Burke Robertson, Bringing the Camel into the Tent: State and Federal Power over Electricity Transmission, 49 CLEV. ST. L. REV. 71, 100-02 (2001) (making recommendations about federal transmission legislation).
273. See National Electric Transmission Congestion Report, 72 Fed. Reg. 56,992 (Oct. 5, 2007) (designating two national interest electric transmission corridors).
274. See Cal. Wilderness Coal. v. U.S. Dep't of Energy, 631 F.3d 1072, 1107 (9th Cir. 2011) (overturning the rules for failure to comply with the National Environmental Policy Act)
275. Piedmont Envtl. Council v. FERC, 558 F.3d 304, 319-20 (4th Cir. 2009) (finding multiple problems with the rules).
276. See Piedmont, 558 F.3d at 310 ("The phrase [withheld approval of a permit application for more than one year] does not include, as FERC held, the denial of an application.").
277. Transmission Infrastructure: Hearing Before the S. Comm. on Energy & Natural Res., 111th Cong. 11 (2009) (statement of Jon Wellinghoff, Acting Chairman, FERC).
278. The Supreme Court denied certiorari in the Piedmont case. Edison Elec. Inst. v. Piedmont Envtl. Council, 130 S.Ct. 1138 (2010).
279. See, e.g., Jim Rossi, The Trojan Horse of Electric Power Transmission Line Siting Authority, 39 ENVTL. L. 1015, 1037 (2009) ("[S]ome interpret the decision as seriously hobbling FERC's ability to implement its backstop authority."). The Waxman-Markey Bill contained a provision that would have strengthened FERC's backstop siting authority, but only in portions of the western United States.
280. See American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong. § 151(b) (2009) (stating that the powers only apply to the Western Interconnection). The Obama administration briefly considered, then abandoned, a plan to continue to try and use section 216 authority.
281. See Lynn Garner, Energy Department Drops Plan to Cede Power to FERC for Siting Transmission Lines, 42 Env't Rep. (BNA) 2297 (2011).
282. Specifically, Congress failed to pass three bills that would have increased FERC's backstop authority. See American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong. § 151 (2009)
283. American Clean Energy Leadership Act, S. 1462, 111th Cong. § 121 (2009)
284. Clean Renewable Energy and Economic Development Act, S. 539, 111th Cong. § 3 (2009).
285. The Seventh Circuit struck down a recent transmission rate proposal, which would have spread transmission costs widely, for failing to adhere to this principle. See Ill. Commerce Comm'n v. FERC, 576 F.3d 470, 476 (7th Cir. 2009) ("FERC is not authorized to approve a pricing scheme that requires a group of utilities to pay for facilities from which its members derive no benefits . . . ."). The court, however, offered a qualification to the "beneficiary pays" principle: "We do not suggest that the Commission has to calculate benefits to the last penny, or for that matter to the last million or ten million or perhaps hundred million dollars."
286. see also K N Energy, Inc. v. FERC, 968 F.2d 1295, 1301 (D.C. Cir. 1992) (upholding FERC cost-spreading order when "all segments of the industry . . . will nonetheless ultimately benefit from their resolution").
287. Investors have poured $6.8 billion into new transmission lines in Texas, which will deliver double the wind capacity to consumers as new wind farms develop. Texas to Double Wind Capacity, Deliver to Major Cities, SUSTAINABLEBUSINESS.COM (Apr. 1, 2013, 1:31 PM), http://www.sustainablebusiness.com/index.cfm/go/news.display/id/24725, archived at http://perma.cc/LX63-PTS5. In 2005, Texas created "competitive renewable energy zones" ("CREZ zones"), areas suitable for development of wind resources. The state offered financial incentives for investment in renewable power within the CREZ zones, and decided to "socialize" the costs of building transmission generators in the CREZ zones eastward to those in San Antonio, Houston, and the remainder of central and east Texas. The presence of this new transmission, in turn, has sparked the development of more renewable generation in Texas than in any other state.
288. See Matthew L. Wald, Wired for Wind, N.Y. TIMES, July 24, 2014, at B1.
289. The Electric Reliability Council of Texas ("ERCOT") is an RTO that manages a grid that is functionally separate from the remainder of the American power grid, and comprises most of the grid within the State of Texas. See Jared M. Fleisher, ERCOT's Jurisdictional Status: A Legal History and Contemporary Appraisal, 3 TEX. J. OIL, GAS & ENERGY L. 4, 4 (2008) (explaining that ERCOT is "the network of interconnected utilities that together cover approximately 75 percent of the land area in the state of Texas"). The reasons for this separation traced back to the desire of the Texas utilities to remain free from FERC jurisdiction. See id. at 10 (explaining that in response to the passage of the Federal Power Act in 1935, Texas utilities sought to cut themselves off from interstate commerce to evade federal jurisdiction).
290. Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities, 76 Fed. Reg. 49,842 (Aug. 11, 2011) (to be codified at 18 C.F.R. pt. 35).
291. Specifically, FERC borrows from the Seventh Circuit's decision in Illinois Commerce Commission v. FERC, 576 F.3d 470, 477 (7th Cir. 2009), by requiring that each of the costs assigned to utility ratepayers be "roughly commensurate" with the benefits the line will bring to those ratepayers.
292. See Transmission Planning and Cost Allocation, 76 Fed. Reg. at 49,922.
293. See Transmission Planning and Cost Allocation, 76 Fed. Reg. at 49,876 ("The Commission requires public utility transmission providers to amend their OATTs to describe procedures that provide for the consideration of transmission needs driven by Public Policy Requirements in the local and regional transmission planning processes.").
294. For an interesting analysis of the federalism issues posed by the transmission lines siting problem, see generally Alexandra B. Klass & Elizabeth J. Wilson, Interstate Transmission Challenges for Renewable Energy: A Federalism Mismatch, 65 VAND. L. REV. 1801 (2012).
295. For additional information, see id. at 1851-55. FERC ultimately upheld the multi-value project. See FERC Upholds MISO's MVP Transmission Cost Allocation Methodology, RESTRUCTURING TODAY, Oct. 21, 2011, at 1.
296. See Ill. Commerce Comm'n v. FERC, 721 F.3d 764, 777 (7th Cir. 2013).
297. Oral Argument at 16:19, Ill. Commerce Comm'n v. FERC, 721 F.3d 764 (7th Cir. 2013) (Nos. 11-3421, 11-3430, 11-3584, 11-3585, 11-3586, 11-3620, 11-3787, 11-3795, 11-3806, 12-1027), available at http://media.ca7.uscourts.gov/sound/2013/sk.11-3421.11-3421-04-10-2013.mp3.
298. See Ill. Commerce Comm'n v. FERC, Nos. 13-1674, 13-1676, 13-2052, 13-2262, slip op. at 5 (7th Cir. June 24, 2014) (rejecting FERC's approval of a plan to allocate some of the costs of a new line in the eastern part of the PJM RTO territory to utilities in the western part because FERC failed to make sufficient attempts to quantify the reliability and other benefits of the line to western utilities).
299. See S.C. Pub. Serv. Auth. v. FERC, No. 12-1232, 2014 WL 3973116, at ∗17-20 (D.C. Cir. Aug. 15, 2014).
300. See 2006 Cal. Stat. 3419-3431
301. see also Memorandum of Understanding Between Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York, and Vermont (Dec. 20, 2005), available at http://rggi.org/docs/mou-final-12-20-05.pdf (forming the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort between states in the northeast to regulate GHGs within their borders using a marketable permit system). In addition, in 2014, New York published for public comment a "draft energy plan" that would more aggressively promote clean energy and efficiency in the state's power sector.
302. N.Y. STATE ENERGY PLANNING BD., SHAPING THE FUTURE OF ENERGY: 2014 DRAFT NEW YORK STATE ENERGY PLAN (2014), available at http://energyplan.ny.gov/-media/nysenergyplan/2014stateenergyplan-documents/2014-draft-nysep-vol1.pdf.
303. The Energy Policy Act of 2005 authorized FERC to promote the use of demand response, stating that "[i]t is the policy of the United States that time-based pricing and other forms of demand response . . . shall be encouraged . . . and unnecessary barriers to demand response participation . . . shall be eliminated." Pub. L. No. 109-58, § 1252(f ), 119 Stat. 594, 966 (codified at 16 U.S.C. § 2642 (2012)).
304. The Energy Independence and Security Act of 2007 requested that FERC conduct a "[n]ational [a]ssessment" of demand response potential. Pub. L. No. 110-140, § 529, 121 Stat. 1492, 1664 (codified at 42 U.S.C. § 8279 (2012)).
305. See Standardization of Generator Interconnection Agreements and Procedures, 68 Fed. Reg. 49,846 (Aug. 19, 2003) (to be codified at 18 C.F.R. pt. 35) (requiring changes to pro forma large generator interconnection agreements to accommodate variable energy resources).
306. Joshua Z. Rokach, Bending to the Wind, ELECTRICITY J., Mar. 2011, at 86, 88.
307. Integration of Variable Energy Resources, 77 Fed. Reg. 41,482 ( July 13, 2012) (to be codified at 18 C.F.R. pt. 35).
308. Jon Wellinghoff, Chairman, FERC, Statement at NARUC Summer Meetings: International Presentation on a Shared Energy Vision for North America: Regulations, Markets, and the Environment ( July 20, 2009), available at https://www.ferc.gov/media/statements-speeches/wellinghoff/2009/07-20-09-wellinghoff.pdf.
309. Wholesale Competition in Regions with Organized Electric Markets, 73 Fed. Reg. 64,100 (Oct. 28, 2008) (to be codified at 18 C.F.R. pt. 35), order on reh'g, Wholesale Competition in Regions with Organized Electric Markets, 74 Fed. Reg. 37,776 ( July 29, 2009) (to be codified at 18 C.F.R. pt. 35).
310. Wholesale Competition in Regions with Organized Electric Markets, 73 Fed. Reg. 64,100, 64,119 (Oct. 28, 2008) (to be codified at 18 C.F.R. pt. 35).
311. Demand Response Compensation in Organized Wholesale Energy Markets, 76 Fed. Reg. 16,658 (Mar. 24, 2011) (to be codified at 18 C.F.R. pt. 35) (seeking to balance the strain on the electric system by giving customers incentives to reduce energy consumption when wholesale energy prices are high). For an analysis of Order No. 745, see Richard J. Pierce Jr., A Primer on Demand Response and a Critique of Order 745, 3 GEO. WASH. J. ENERGY & ENVTL. L. 102 (2012).
312. Elec. Power Supply Ass'n v. FERC, No. 11-1486, slip op. at 16 (D.C. Cir. May 23, 2014).
313. Demand Response Compensation in Organized Wholesale Energy Markets, 76 Fed. Reg. 16,658, 16,680 (Mar. 24, 2011) (to be codified at 18 C.F.R. pt. 35) (Moeller, Comm'r, dissenting). Petitioners claimed that LMP overcompensates demand-response providers because they incur no real costs in providing their "resource" to the market, while providers of power earn the LMP minus their costs of generation.
314. See Brief of Robert L. Borlick, Joseph Bowring, James Bushnell, and 18 Other Leading Economists as Amici Curiae in Support of Petitioners at 18-20, Elec. Power Supply Ass'n, No. 11-1486 (D.C. Cir. Oct. 25, 2012).
315. In a vigorous dissent, Judge Edwards accepted FERC's claim of jurisdiction based on the power to correct "practices affecting" wholesale rates. Indeed, he characterized that interpretation of the FPA as "straightforward and sensible" and consistent with precedent, and urged deference to the agency's "well-reasoned and permissible interpretation of . . . the statute." Elec. Power Supply Assoc., No. 11-1486, slip op. at 13-14, 22 (Edwards, J., dissenting).
316. For a summary of this literature, see George A. Krause, Legislative Delegation of Authority to Bureaucratic Agencies, in THE OXFORD HANDBOOK OF AMERICAN BUREAUCRACY 521-544 (Robert F. Durant ed., 2010).
317. This articulation of the political control hypothesis within the public choice literature is most associated with Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast. See generally Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987)
318. Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989).
319. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984) (describing two models of ex post controls).
320. See Woodrow Wilson, The Study of Administration, 2 POL. SCI. Q. 197, 201 (1887) (advocating for a "scientific" approach to public administration unfettered by political interference).
321. See Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure, LAW & CONTEMP. PROBS., Spring 1994, at 1, 15-28 (describing the president's tools of political influence over agencies).
322. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2282-2303 (2001) (describing administrative policy initiatives led by the White House and claimed by President Bill Clinton as political victories).
323. See Remarks by the President on National Fuel Efficiency Standards, WHITE HOUSE (May 19, 2009), http://www.whitehouse.gov/video/President-Obama-A-New-Consensus-on-Auto-Emissions, archived at http://perma.cc/7YTC-KK5G.
324. See Memorandum of May 21, 2010: Improving Energy Security, American Competitiveness and Job Creation, and Environmental Protection Through a Transformation of Our Nation's Fleet of Cars and Trucks, 75 Fed. Reg. 29,399 (May 26, 2010) (directing EPA and NHTSA to work together on post-2017 fuel efficiency rules).
325. See Memorandum of June 25, 2013: Power Sector Carbon Pollution Standards, 78 Fed. Reg. 39,535 ( July 1, 2013).
326. Chairman Jon B. Wellinghoff had a long history of supporting such policies prior to his service as a FERC commissioner, and was chosen by the president as chairman in part because of them. Shortly before his nomination to FERC, Wellinghoff was focused on renewable energy policy, proposing Nevada's renewable portfolio standards (RPS) legislation and consulting on RPS proposals in six other states. See Moeller and Wellinghoff Nominations: Hearing Before the S. Comm. On Energy & Natural Res., 109th Cong. 10-13 (2006) (statement of Jon Wellinghoff, nominee, FERC comm'r).
327. E.g., Barack Obama, President, Remarks on Recovery Act Funding for Smart Grid Technology (Oct. 27, 2009), available at http://www.whitehouse.gov/the-press-office/remarks-presidentrecovery-act-funding-smart-grid-technology.
328. See generally Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131 (2012) (exploring coordination between agencies given overlapping and fragmented delegations of authority).
329. Career staff can resist the direction of political appointees, and appointees may come to align themselves with the perspective of the agency rather than that of the President. By some accounts, both of these dynamics were at work during the tenure of Bush EPA Administrator Christine Todd Whitman and may have hastened her regulation. See, e.g., Christine Todd Whitman: The End of the Road, ECONOMIST, May 24, 2003, at 48 (discussing Administrator Whitman's relationship with President Bush).
330. Massachusetts v. EPA, 549 U.S. 497, 534 (2007) (rejecting EPA's refusal to make a causeor-contribute finding for GHGs). The tension between the Bush White House and EPA produced several interpretations of the CAA that were overturned by the courts, but are beyond the scope of this Article.
331. See, e.g., Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 565-66 (2007) (rejecting EPA's decision that certain repair and maintenance activities are not "modifications" that trigger emissions limits under the statute)
332. New Jersey v. EPA, 517 F.3d 574, 583 (D.C. Cir. 2008) (finding EPA's decision to regulate mercury emissions from power plants as a non-toxic pollutant inconsistent with the statute).
333. For a description of this process, see Carbon Pollution Standards, EPA, http://www2.epa.gov/carbon-pollution-standards/, archived at http://perma.cc/5CQ6-S3CD, which explains EPA's proposals to reduce carbon pollution and inviting members of the public to participate in the regulatory process.
334. See, e.g., Michael B. Gerrard, What the Law and Lawyers Can and Cannot Do About Global Warming, 16 SOUTHEASTERN ENVTL. L.J. 33, 42 (2007) (observing that GHG lawsuits brought under common law theories "involve massive causation problems").
335. See David S. Tatel, Remarks, The Administrative Process and the Rule of Environmental Law, 34 HARV. ENVTL. L. REV. 1, 2-3 (2010) (providing a judicial perspective on agency rulemaking). Even if temporary political appointees wish to take significant legal risks, career lawyers in the government should be expected to push back.
336. See, e.g., Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1269-70 (2006) (describing the asymmetrical OIRA review that prefers underregulation to overregulation).
337. See generally Lisa Heinzerling, Inside EPA: A Former Insider's Reflections on the Relationship Between the Obama EPA and the Obama White House, 34 PACE ENVTL. L. REV. 325 (2014)
338. See Ted Gayer & W. Kip Viscusi, Determining the Proper Scope of Climate Change Benefits 8-16, 18 (Vanderbilt Univ. Law Sch. Law & Econ. Working Paper No. 14-20, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=2446522.
339. Of course, the Chevron doctrine specifies that when reviewing agency interpretations of enabling legislation, courts should engage in a two-step analysis: at step one, determine whether the enabling statute speaks plainly to the question at issue; if not, at step two, determine whether the agency's interpretation of the statute is reasonable. Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842-43 (1984). All of the agency decisions described in this paper involve EPA interpretations of the CAA or FERC interpretations of the FPA. Therefore, judicial review of those decisions will invoke the Chevron doctrine.
340. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001) (noting that Congress does not "hide elephants in mouseholes")
341. see also United States v. Home Concrete & Supply, 132 S. Ct. 1836, 1842 (2012) (commenting that relying on sparse statutory language to support the agency's position was like "hoping that a new batboy will change the outcome of the World Series").
342. See, e.g., Oral Argument at 16:19, Ill. Commerce Comm'n v. FERC, Nos. 13-1674, 13-1676, 13-2052, 13-2262 (7th Cir. Apr. 22, 2014), available at http://media.ca7.uscourts.gov/sound/2013/sk.11-3421.11-3421-04-10-2013.mp3 (acknowledging the bad fit between the statute and contemporary energy markets)
343. see also Ill. Commerce Comm'n v. FERC, Nos. 13-1674, 13-1676, 13-2052, 13-2262, slip op. at 22, 28 (7th Cir. June 25, 2014) (Cudahy, J., dissenting) (commenting that because of the challenge FERC faces in approving regional cost allocation schemes to site new transmission lines, FERC "has my sympathy as well as my respect" and arguing that FERC should be allowed to "be creative in addressing these unprecedented problems")
344. Transcript of Oral Argument at 12-13, 39, 43, EPA v. EME Homer City Generation, L.P., No. 12-1182 (U.S. Dec. 10, 2013) (showing that Justices Breyer, Kagan, and Kennedy acknowledge the challenge for EPA in addressing interstate pollution within the terms of the statute and suggesting why deference may be appropriate)
345. Transcript of Oral Argument at 14, Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (No. 09-1322) (recording Judge Sentelle's response to counsel's claim that Congress would respond if the court ruled in petitioners' favor, "[w]ith respect, Counsel, any sentence that begins . . . by saying that [']Congress will surely,['] whatever the sentence says after that, it's not a very convincing sentence").
346. See, e.g., Lisa Schultz Bressman, Deference and Democracy, 75 GEO. WASH. L. REV. 761, 764 (2007) (arguing that judicial intervention is needed to ensure accountability when agencies ignore the wishes of Congress and the public ).
347. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 229-30 (2006) (highlighting unnecessary complexity).
348. But see EINER ELHAUGE, STATUTORY DEFAULT RULES 41-42, 151-55 (2008) (arguing that default rules of statutory construction should favor the preferences of the current Congress - or at least elicit the preferences of the current Congress).
349. Indeed, assuming the public continues to support the agency's mission, agencies may be more likely than Congress to produce outcomes that are consistent with the wishes of the median voter generally. For an explanation of this logic, see David B. Spence, A Public Choice Progressivism, Continued, 87 CORNELL L. REV. 397, 420 (2002) (pointing out that "information advantages" and partial political insulation make agencies more effective agents for the median voter).
350. Bob Cohn, Scalia: Our Political System Is 'Designed for' Gridlock, ATLANTIC (Oct. 6, 2011, 10:25 AM), http://www.theatlantic.com/national/archive/2011/10/scalia-our-political-system-is-designed-forgridlock/246257, archived at http://perma.cc/822N-V6RD
351. Justice Scalia Rejects Dysfunctional Government Talk, REUTERS, Oct. 5, 2011, available at http://www.reuters.com/article/2011/10/05/us-usa-courtscalia-idUSTRE7946LB20111005.
352. See, e.g., JAMES MACGREGOR BURNS, THE DEADLOCK OF DEMOCRACY: FOUR-PARTY POLITICS IN AMERICA 6 (1963) ("[O]ur system was designed for deadlock and inaction.")
353. ROBERT SHOGAN, THE FATE OF THE UNION: AMERICA'S ROCKY ROAD TO POLITICAL STALEMATE 5-8 (1998) (discussing the Framers' efforts to create a government that was both robust and constrained).
354. See, e.g., SARAH A. BINDER, STALEMATE: CAUSES AND CONSEQUENCES OF LEGISLATIVE GRIDLOCK 7-11 (2003) (arguing that the Framers did not favor gridlock)
355. Michael J. Gerhardt, Why Gridlock Matters, 88 NOTRE DAME L. REV. 2107, 2110-18 (2013) (describing the value of gridlock and of overcoming gridlock).
356. THE FEDERALIST NO. 58, at 409 ( James Madison) (Henry B. Dawson ed., 1864).
357. THE FEDERALIST NO. 22, at 144 (Alexander Hamilton) (Henry B. Dawson ed., 1864).
358. see also Charles O. Jones, A Way of Life and Law, AM. POL. SCI. REV., Mar. 1995, at 1, 3 ("[T]he point was not solely to stop the bad from happening; it was to permit the good, or even the middling, to occur as well.").
359. John Rohr has made a careful and persuasive argument that administrative agencies now serve the deliberative function that the Framers envisioned for the Senate. JOHN A. ROHR, TO RUN A CONSTITUTION: THE LEGITIMACY OF THE ADMINISTRATIVE STATE 32-39 (1986). That is, agencies may do a better job than a polarized Congress of producing policy decisions that correspond to the preferences of a fully informed median voter.
360. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
361. In other cases, the Court has opined similarly that Congress does not "hide elephants in mouseholes," requiring much clearer statements from Congress. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001)
362. see also, e.g., INS v. St. Cyr, 533 U.S. 289, 299 (2001) ("Congress must articulate specific and unambiguous statutory directives . . . .")
363. MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994) ("It is highly unlikely that Congress would leave the determination . . . to agency discretion . . . through such a subtle device . . . .")
364. cf. John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 227 (2001) (arguing that the Brown & Williamson court read the statute narrowly to avoid a nondelegation problem)
365. See Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009)
366. codified in scattered sections of 15 U.S.C. and 21 U.S.C. (2012).
367. See Adam Liptak, Justices Opt for Fewer Cases, and Professors and Lawyers Ponder Why, N.Y. TIMES, Sept. 29, 2009, at A18 (explaining that the Supreme Court hears around eighty cases each term).
368. see also Cass R. Sunstein, Is Tobacco a Drug? Administrative Agencies as Common Law Courts, 47 DUKE L.J. 1013, 1060 (1998) (arguing that interpretation of regulatory statutes is properly "an administrative task, not a judicial one").
369. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 209 (2006).
370. Chevron U.S.A. v. NRDC, Inc., 467 U.S. 837, 843 (1984).
371. Morton v. Ruiz, 415 U.S. 199, 231 (1974).
372. See United States v. Mead Corp., 533 U.S. 218, 230 (2001) ("It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.")
373. see also Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 HARV. L. REV. 528, 555 (2006) (supporting this distinction between levels of deference for formal and informal actions on the grounds that agencies devote more resources to reaching the correct decision when using formal, transparent decision processes).
374. see Piedmont Environmental Council v. FERC, 558 F.3d 304, 319-20 (4th Cir. 2009)
375. D.C. Circuit's decision in Electric Power Supply Ass'n, overturning FERC's demand response rule, see Elec. Power Supply Ass'n v. FERC, No. 11-1486, slip op. at 16 (D.C. Cir. May 23, 2014).
376. See, e.g., Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 842-51 (2006) (suggesting a correlation between judges' ideology and their applications of Chevron to agency decisions).
377. See Util. Air Regulatory Grp. v. EPA, No. 12-1146 (U.S. June 24, 2014). The Chief Justice, Justice Alito, Justice Kennedy, and Justice Thomas joined in Justice Scalia's opinion that GHGs were not "any air pollutant" for purposes of triggering the program. Justice Breyer, writing for himself, Justice Ginsburg, Justice Kagan, and Justice Sotomayor, would have deferred to the agency's view by reading an implicit exception into the phrase "any source with the potential to emit 250 tons per year," excluding smaller sources for which regulation at that threshold would be absurd.
378. Losing even on a single narrow issue is still losing: a rebuke from the Court would surely be seen as a political setback as the agency prepares to roll out the rest of its GHG program. In recent years, EPA has suffered some notable losses in the High Court, including the rejection of its use of unreviewable compliance orders under the Clean Water Act in Sackett v. EPA, 132 S. Ct. 1367, 1374 (2012), which allowed an Administrative Procedure Act challenge to an EPA compliance order.
379. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)
380. MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994).
381. See Frederick Mayer et al., Americans Think the Climate Is Changing and Support Some Actions fig.2 (Nicholas Inst. for Envtl. Policy Solutions, Duke Univ., Policy Brief 13-01, 2013), available at http://nicholasinstitute.duke.edu/sites/default/files/publications/ni-pb-13-01-0.pdf (presenting poll data showing that sixty-four percent of Americans strongly or somewhat favor regulating GHGs)
382. see also Tracking Public Attitudes-Latest Polls, U.S. CLIMATE ACTION NETWORK, http://www.usclimatenetwork.org/hot-topics/climate-polling (last visited Oct. 3, 2014), archived at http://perma.cc/NWD2-BCR8 (collecting climate change polls).
383. See generally KEITH KREHBIEL, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING 20-48 (1998).
384. See generally GARY W. COX & MATHEW D. MCCUBBINS, SETTING THE AGENDA: RESPONSIBLE PARTY GOVERNMENT IN THE U.S. HOUSE OF REPRESENTATIVES (2005).
385. See Geoffrey C. Layman et al., Activists and Conflict Extension in American Party Politics, AM. POL. SCI. REV., May 2010, at 324, 324-27
386. Keith Krehbiel, Where's the Party?, 23 BRITISH J. POL. SCI. 235, 260 (1993) (ascribing the relatively greater party discipline in parliamentary systems to greater ideological homogeneity of parties).
387. The so-called "Hastert Rule," named after former House Speaker Dennis Hastert, is that the majority should only bring to a vote bills supported by a majority of the majority party. In 2013, Speaker John Boehner pledged to follow the Hastert Rule in managing the House of Representatives's consideration of immigration reform bills. Molly K. Hooper, Boehner: I'm Not for a Comprehensive Solution, HILL, June 19, 2013, at 1.
388. Keith Poole & Howard Rosenthal, VOTEVIEW, http://www.voteview.com/ (last visited Oct. 3, 2014), archived at http://perma.cc/RFM6-THDL.
389. For a full description of the methods used to develop these ideological positions, see Keith T. Poole & Howard Rosenthal, A Spatial Model for Legislative Roll Call Analysis, 29 AM. J. POL. SCI. 357 (1985)
390. Keith T. Poole, NOMINATE: A Short Intellectual History, VOTEVIEW, http://voteview.com/nominate/nominate.htm, archived at http://perma.cc/V3YH-SVNC.
391. For critical analyses of the Poole and Rosenthal typology, see, for example, SEAN M. THERIAULT, PARTY POLARIZATION IN CONGRESS 17 n.8 (2008), which highlights potential problems with cross-Congress comparisons.