Section 115 in Practice

Days before President Reagan’s inauguration and over a year after initiating negotiations with Canadian regulators, the Administrator of the Environmental Protection Agency under President Carter sought to activate Section 115 of the Clean Air Act and thereby commit the federal government to regulating the coal-fired power plants thought to be primarily responsible for causing acid rain in Canada and the United States. His attempt kicked off a decade of litigation and regulatory maneuvering between proponents and opponents of limiting power plants’ sulfur dioxide emissions. The D.C. Circuit’s 1990 decision resolving that dispute involved very little interpretation of Section 115’s language, and so put almost no constraint on how EPA might interpret that language in the future. This lack of constraint was evident from comments on Section 115 submitted in 2008 to the Bush Administration’s EPA, which had sought input on options for regulating greenhouse gas emissions under the Clean Air Act. Neither EPA nor the courts have engaged with Section 115 since.