Comments by Brian H. Potts Subscribe

On EPA’s Clever Legal Trick Could Save Its Clean Power Plan

See page 4 of this document:



July 2, 2014    View Comment    

On EPA’s Clever Legal Trick Could Save Its Clean Power Plan

Hi Evan - thanks for your comment.  Although many of the press reports about the rule have said that EPA's required reductions are from 2005 levels, EPA actually used 2012 data as its baseline for calculating the required reductions under each building block.      

June 28, 2014    View Comment    

On The EPA Doesn't Have The Legal Authority To Adopt Its New Power Plant Climate Rules


Thanks for your comment.  Both NRDC and the Clean Air Task Force have cited the Lodge 1858 case in previous responses to this argument; however, if you read that case, it is not even really relevant to this situation.  In Lodge 1858, the Court was interpreting two separate provisions of the same act: one was general and one was more specific.  The two provisions arguably conflicted, and the court merely held that the more specific provision that was situated later in the act controlled. 

Unfortunately, the Lodge 1858 case is easily distinguishable from the section 111(d) situation here.  Just to name a few of the more obvious differences: (1) the House and Senate language are different versions of the same provision (section 111(d)), not two different provisions in an act; (2) the House and Senate versions of section 111(d) don’t conflict; and (3) one version is not more specific than the other.

The best arguments that I have seen supporting EPA’s authority are in the states’ comments here (see pages 9-14).

Notably, the states don’t even cite the Lodge 1858 case, even though both NRDC and CATF published their responses to these arguments in August and November of 2013, well before the states’ submitted their comments to EPA on December 16, 2013.



March 27, 2014    View Comment