Is the Clean Power Plan illegal because it is regulated under the wrong section of the Clean Air Act? From The Week: How a drafting error could doom Obama’s carbon regulations.
To understand why the Clean Power Plan may be at risk, we need to take a brief detour into the exciting world of federal environmental law. The EPA’s authority to regulate air emissions is governed by the Clean Air Act, which breaks that regulatory authority into different categories. Section 111(d) of the act, for example, gives the EPA authority to set certain standards for existing power plants, while section 112 of the act authorizes EPA to regulate for certain hazardous pollutants. There is a significant amount of overlap between these two categories, and so to avoid duplicative regulation, the EPA was initially prohibited from issuing regulations under 111(d) for pollutants already regulated by 112.
Ordinarily, when the House and Senate pass different versions of the same bill, any discrepancies are reconciled by a Conference Committee. In this case, however, the Committee was asleep at the switch, and included both the House and Senate amendments to the language in the final bill. Since the two versions of the language are inconsistent, this has created a bit of a statutory puzzle. The U.S. Code includes the House language. The EPA, by contrast, has long maintained that the Senate language is what governs.
This matters, because under the House language, the EPA’s Clean Power Plan would be illegal, since the EPA has already issued regulations under 112 of the same “source category” as the existing power plants covered in the new rule.
The rest of the article is here.
Now, you need to find the judge who doesn’t believe they can put in what was meant rather what was said and normally gives great latitude for rewriting the law to the regulatory agency. It ought to be fun watching.