Environmental Law Prof Blog

Agricultural Law Blog Post on Renewable Fuel Standard

On Tuesday, Josh Fershee posted a critique of the US renewable fuel standard (RFS), which mandated expanded use of biofuels, including ethanol.  Agricultural Law post  He criticized the RFS on the grounds that cellulosic fuels are more green, and the RFS acan be met with ethanol from corn and other non-cellulosic sources.  In addition, Fershee noted that the studies indicating that fuel crops were greener than gasoline did not consider whether the fuel crops would replace rangelands or forest lands already sequestering carbon.  He opines:

A better ethanol policy would include requirements and incentives linked to new or emerging technologies that don’t create new competition for other already viable (e.g., corn) crops with established markets or lead to cleared tropical forests or savannas. Policies should instead promote only ethanol derived from growing high-diversity prairie hay grown on degraded lands, for instance, or from corn cobs.

I agree, but I would go further.  The policy should restrict ethanol to cellulosic fuels that are not produced on lands converted from food crops.

Crude prices exceed $ 115

According to MarketWatch, crude oil prices reached a new record high above $115 a barrel today, as US crude inventories fell for the second week, from 316 million barrels to 313.7 million barrels, according to Energy Information Administration.  Due to the weak demand arising from the recession, analysts had expected an increase of 1.5 million barrels.  US inventories have dropped about 5 million barrels in the past two weeks. A variety of factors is driving price increases for crude oil and refined gasoline: low inventories due to reduced imports by refineries running far below capacity, the decline in the value of the dollar, and speculators buying up commodies as a hedge against recession.MarketWatch

Zg Plater, Pat Parenteau and others to appear at 30th Anniversary Symposium of TVA v. Hill

Here is the announcement:

“A Symposium on TVA v. Hill:
A 30-Year Retrospective on the Legendary Snail Darter Case”

at The University of Tennessee College of Law, Knoxville, Friday, April 18.
The Symposium will start at noon EDST, and you are welcome to join via Webcast.  The Symposium website has a variety of intersting materials.Symposium Website link   The WEBCAST itself can be accessed at Webcast Link   The different sections of the webcast (which will have to be individually cued, starting at noon), are

Welcome
The Little T Valley:  Home of the Snail Darter
The Saga of How a Citizen Suit Goes National
The TVA History of the Darter Case
The Snail Darter Case in a National Perspective
Overview Wrap-Up Panel

Exactly 30 years before this coming Friday the Supreme Court heard the oral arguments in Tennessee Valley Authority v. Hiram Hill, et al., perhaps the most dramatic national legal story to come out of Tennessee in the past 75 years. Developing over the course of most of a decade, the Tennessee lawsuit— the little endangered snail darter fish versus TVA’s Tellico Dam — became a cultural icon, famous or infamous around the world.

The University of Tennessee College of Law’s thirty-year darter-versus-dam symposium offers a beneficial opportunity finally to put the case into an academic forum and accurate perspective, free of the spins, disinformation, and politicking that graced its years of notoriety, 1973-1980. Thirty years later the elements of the controversy have become broadly clear — the dam project was never a hydro project, but a recreational and land development scheme that was found to be economically dysfunctional from the start, in a unanimous decision  by the world’s first “God Committee” session under the ESA. Within a year, however, an appropriations rider nevertheless ended the case and the river. The merits of this saga will be addressed objectively in an academic forum, and lessons drawn.

Presenters include Dr. David Etnier who discovered the endangered species, several farmers who were displaced by Kelo-like condemnations, Zygmunt Plater who spent six years on the judicial, agency, and congressional battles in the case, Hank Hill & Peter Alliman who shaped the litigation effort as students at UT College of Law, Patrick Parenteau who provided sage support for the citizens’ efforts in Washington D.C. over three years of the case, Prof. Bruce Wheeler who co-authored an intensive internal history of TVA’s campaign to build the dam, and LSU Prof. Ken Murchison who wrote a recent book on the legal history of the case.

A bar journal cover story on the case can be accessed at Tennesee Bar Assn

Please join us electronically if you cannot be with us in person!

Supreme Court Grants Cert to Consider Whether to Reverse the Second Circuit's Decision that CWA Cooling Water Intake Structure Technology-Based Rules Cannot be Based on Cost-Benefit Analysis

The U.S. Supreme Court has granted certiorari in the Riverkeeper v. US EPA (Riverkeeper II), 475 F.3d 83 (2d Cir. 2007), which remanded EPA rules on power plant cooling water intake structures that included a number of utility-friendly provisions.  Even so, the industry has estimated that implementation of the rules will cost $ 1 billion.  According to Jim May, the Solicitor General argued against cert.  E & E reports that the US opposes the 2d Circuit decision on the merits.  Petitioners naturally expressed enthusiasm about the Court's grant of cert.  EE quoted the Entergy spokesman as saying: 

The high court "recognizes the national importance of EPA's authority and responsibility to balance the extra cost of regulations ... with the benefits that might be provided,"..."The Supreme Court should take the opportunity to establish rationality in this analysis ... and re-establish EPA's authority to draw a line in the sand about costs that are significantly greater than the benefit they create for the environment"

In Riverkeeper II, 2d Cir opinion pdf the Second Circuit held that CWA 316(b) mandated use of "best technology available" for cooling water intake structures at power plants and did not permit use of cost-benefit analysis, although cost could be considered to determine benchmark technology or to engage in cost-effectiveness analysis.  The court concluded that EPA must explain how the technology selected by EPA “approached” the performance of closed cycle cooling.  The court also held that  EPA exceeded its authority by (1) permitting existing plants to meet national performance standards via use of restoration measures and (2) including a site-specific “cost-benefit” variance.  The court sustained EPA regulation of existing as well as new power plants. Finally, the court held that two provisions, the inclusion of a site-specific “cost-cost” variance and the categorical inclusion in “existing facilities” of new units that are part of same industrial operation, violated the APA notice and comment requirements.

Recent Opinions Available through BNA

BNA recently published the following opinions.  For those of you not familiar with environmental law, BNA frequently obtains and publishes opinions that are not readily available through other sources.  subscribers can access the full test -- for a free trial or to subscribe contact BNA at http://web.bna.com or call BNA Customer Relations at 800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET).

California Merchant Vehicle Rules Restricting PM, NOx, and SO2 emissions from marine vessel engines within 24 miles of California coast are preempted by the Clean Air Act:(1) CAA preempts state standards regulating nonroad engine emissions unless California receives approval for specific standards from Environmental Protection Agency; (2) agency did not seek approval for its rules; (3) even though rules only apply to non-new engines, preemption under act applies to regulation of both existing and new engines; (4) agency's rules are standards under act; and (5) rules are not "in-use requirements" not subject to preemption under act. See Pacific Merchant Shipping Ass'n v. California Air Resources Board (9th Cir. 2/27/08)

9th Circuit stayed preliminary injunction prohibiting sonar testing off California coast because: (1) federal district court did not explain why injunction could not be tailored to authorize testing with mitigation measures court previously approved, (2) Navy presented substantial case on appeal, (3) Navy will be harmed absent stay, and (4) public interest in national defense militates in favor of granting stay. See NRDC v. Navy Department (9th Cir. 8/31/07)

Successor corporation claims that CERCLA 106 administrative order violates due process dismissed: (1) order did not deprive successor of protected property or liberty rights, (2) successor has meaningful opportunity to challenge order in court, (3) government's role as potentially responsible party potentially liable for cleanup of site does not render issuance of administrative order unconstitutional, and (4) Section 120(a)(1) of CERCLA only waives government's sovereign immunity and does not establish any substantive rights that Section 106 orders could violate. See Raytheon Aircraft Co. v. United States (D. Kan., 8/10/07)

Summary judgment issued for NMFS regarding claim that NMFS Hatchery Fish Policy without EIS violated NEPA.   ESA procedures displace NEPA as to listing determinations, critical habitat designations and any other action taken pursuant to the listing policy: (1) NEPA purposes were served by service providing public with notice and opportunity to comment on listing policy, (2) service considered alternatives proposed in public comments, and (3) ESA environmental protection procedures that displace NEPA EIS procedures as to listing determinations and critical habitat designations will apply to any action taken pursuant to listing policy. See Trout Unlimited v. National Marine Fisheries Service (W.D. Wash. 6/13/07)

Findlaw Environmental Law Case Summaries

These environmental law case summaries are provided by Findlaw.  To read the whole text of the cases, sign into Findlaw.

U.S. 1st Circuit Court of Appeals, April 08, 2008
Commonwealth of Massachusetts v. US, No. 07-1482, 07-1483
In an action where Massachusetts sought to participate directly in a re-licensing proceeding of two nuclear energy plants as a party before the U.S. Nuclear Regulatory Commissions (NRC) issues its renewal decision, petition for review of NRC's dismissal of the Commonwealth's hearing request is denied where: 1) Massachusetts sought the wrong path, as a matter of law, in seeking to raise safety issues as a party in the licensing proceedings; 2) Massachusetts retains a meaningful opportunity to seek judicial review under the procedural course advanced by the agency; and 3) the agency has not issued a final order regarding the rulemaking petition for purposes of judicial review. Read more...

U.S. 1st Circuit Court of Appeals, April 10, 2008
Esso Standard Oil Co. v. Lopez-Freytes, No. 07-1218
An order which permanently enjoined defendants, several members and officials of the Puerto Rico Quality Board, from imposing a $76 million fine on plaintiff is affirmed over claims that: 1) the district court should have abstained from exercising jurisdiction pursuant to the Younger abstention doctrine; and 2) in any event, the court erred in concluding that there existed bias necessitating the imposition of the injunction. Read more...

U.S. 9th Circuit Court of Appeals, April 10, 2008
US v. Vasquez-Ramos, No. 06-50553,06-50694
Denial of defendants' motion to dismiss their indictments for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA), is affirmed where, pursuant to prior circuit precedent which remains binding, the prosecutions did not violate the Religious Freedom Restoration Act (RFRA). Read more...

California Appellate Districts, April 09, 2008
Comm. to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles, No. B197018
In an action to compel a city to rescind its permit for a wooden fence that a homeowner had constructed atop a historic granite walls in Hollywoodland, denial of petitioners' writ of mandate is affirmed and reversed in part where: 1) although under the terms of Hollywoodland Specific Plan (HSP) and the Municipal Code, the city properly granted an exception to the HSP; nevertheless 2) the city improperly granted an exemption under the California Environmental Quality Act. Read more...

California Appellate Districts, April 10, 2008
Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors, No. H030986
In a case primarily addressing the limitations period for challenging a public agency's decision under CEQA, dismissal pursuant to demurrer is reversed and remanded where the trial court incorrectly sustained defendant's demurrer without leave to amend on grounds that the proceedings were necessarily time barred by either Public Resource Code section 21167 or Government Code section 65009. Read more...

 

Another Denialist Hypothesis Shot Down: Global Warming is Not Caused by Sun Activity

A recent study by Sloan and Wolfendale examined the hypothesis of Svensmark that increased cosmic rays from sun activity were reducing cloud cover and thus causing global warming.  The Sloan and Wolfendale paper concluded that, when both high level and low level cloud cover are considered, there is no correlation between sun activity and cloud cover.  Sloan and Wolfendale paper

Ecology Law Quarterly announces the first issue of Ecology Law Currents

The first issue of Ecology Law Currents is featured on ELQ’s new website. Currents provides a timely forum for the varying perspectives of law professors, practitioners, policy makers, and students.  Focusing on the role of nuclear power in the context of climate change policies, the first issue presents multiple viewpoints.  It is available at http://www.boalt.org/elq/index.php.  Submissions are being accepted on a rolling basis.  Any inquiries should be addressed to [email protected].

The Official UN Explanation About Food Prices, Demand and Supply

InterPress News Service provided coverage of the news conference in New Delhi on Wednesday in which Jacques Diouf, director general of the United Nations Food and Agriculture Organisation (FAO), described spiralling food prices as an "emergency" that demanded concerted global attention.  "In the face of food riots around the world like in Africa and Haiti, we really have an emergency." Lennart Bage, president of the International Fund for Agricultural Development (IFAD) and Kandeh K. Yumkella, director general of the U.N. Industrial Development Organisation (UNIDO), also addressed the food problem.  The three U.N. agency heads, who were in the Indian capital for a global conference on the development of agro-industries as a means to fight poverty and create jobs.  They advocate increased agricultural investment in water and infrastructure to help small farmers increase productivity. 

Diouf, who blamed the crisis primarily on the steady migration of rural populations to the cities, in turn affecting food production, said he was looking to a summit in Rome in the first week of June to address this as well as factors that had to do with the developed world, such as the diversion of farmland to produce biofuels and speculation in the futures markets.  Yet other factors that contributed to the spike in prices, Diouf said, were adverse weather conditions, such as an unexpectedly severe cold spell in China, droughts in Australia and Kazakhstan and floods in India and Bangladesh.  According to Diouf, the world was now down to 405 million tonnes of cereal stocks, or 8-12 weeks worth of supplies for the world's populations. "The rise in prices of food commodities all over the world is not going to ease in the short term in view of supply-demand situation," he said.  "We have seen riots in Egypt, Cameroon, Haiti and Burkina Faso," Diouf said. "There is a risk that this unrest will spread in countries where 50 to 60 percent of income goes to food." Indonesia, Ivory Coast, Mauritania, Mozambique and Senegal have also seen unrest over the last few weeks that was attributed to food and fuel prices.  Global food prices have been rising steadily since 2002 and since January have risen 65 percent. In 2007 alone, according to the FAO's world food index, grain prices have soared 42 percent.  Diouf refused to comment directly on India restricting rice exports, which was said to have caused rice prices in Thailand, the world's biggest exporter of the Asian staple, to shoot up. But he said it was natural for countries to protect their national interests.  According to Diouf, rising income levels of people in rapidly developing economies like China and India was driving a "demand for more milk and more meat" that translated into higher demand for cereals. "I welcome economic growth in India and China, but I also hope they will invest in agriculture because these two countries account for 2.2 billion people out of six billion," Diouf said.

According to InterPress, UNIDO's Yumkella focussed on the shortage in food processing technology, suggesting that technology must be transfered to developing countries so that they can increase shelf life of basic foods."   According to Yumkella, "agro-industry," i.e. food processing, helps preserve foodstuff, add value and reduce post-harvest losses while enabling products to be transported across long distances, including to the rapidly expanding cities: "Agro-industry generates demand for agricultural products and holds vast potential for off-farm rural employment."  Urbanization, rising incomes and more women joining the labour market in many countries increase demand for processed food: worldwide, processed food and beverages now account for 80 percent of all food and drink sales.  One visible response to this trend was the rapid expansion of supermarkets in many developing countries, especially in South-east Asia and in Latin America. Yet, said Yumkella, there were impediments standing in the way of small farmers trying to benefit from this trend such as customs tariffs, non-tariff barriers, standards and certification requirements.   Yumkella also highlighted the global warming issue which will impose "great stresses on the world's ability to feed ever-growing populations. This challenge brings new threats to arable land areas, livestock rearing and fisheries through droughts, water shortages and pollution of land, sea and air."

I find it ironic that as the world faces a crisis in basic food availability, the UN persists in encouraging food processing -- which undoubtedly wastes more food than it saves, provides multi-national agro-industry with huge profits, and continues to drive rural subsistence farmers off the land and into the cities.

Excellent Food Price Site: BBC of course

I am supposed to go to Haiti in the next month or so to work on my Village to Village water and health project.  Haiti has long been a dangerous place for travel: 12 Americans were kidnapped (with accompanying violence) last year alone.  But when I asked my wise group of 4th - 6th grade students in First Congregational Church's Jesus and His Kingdom of Equals class whether I should go, even with the personal risk, their answer was unequivocal: Jesus would.  So now, to complicate matters, Haiti is experiencing food riots.  Rising food prices are more than my surprise at the price of a loaf of bread. Yesterday's post

BBC has an excellent site with video, charts, graphs and lots of facts on rising food prices and supply problems.  BBC Food Prices  Some of the best material highlights (full size images should appear in pop-up windows if you click on them). 

RISING PRICES

TOP IMPORTERS AND EXPORTERS OF WHEAT

AND

THE PRICE INCREASES IN CORN, RICE, SOY, AND WHEAT PRICES DURING THE LAST YEAR

Bread

I went to purchase some bread for a student potluck last night.  The store's bakery had posted apologies about the price of bread, citing the rise in wholesale wheat prices.  I knew  prices were going up -- to be expected when the falling value of the dollar encourages exports, I thought.  But I was shocked to pay almost $ 4 for a loaf of bread.  So I began to wonder -- why?  Is the effect of biofuels showing up already in food prices?  What's happening?

Here's what I found in my brief review on how much bread I paid for bread.  The United Nations Food and Agriculture Organization (FAO) Food Price Index during the last month is about 50% higher for all foods than a year ago -- led in large part by even greater increases in meat and grain prices, including rice, corn and wheat, "supported by a persistent, tight supply and demand situation''    Bloomberg report   Unlike crude oil, wheat prices have not yet hit inflation-adjusted highs -- that honor is left for the period of Soviet Union's desperate wheat purchases during the 1970s. But they have increased 50% in the last 6 months. 

The NY Times reported that the world’s wheat stockpiles have fallen to their lowest level in 30 years, and stocks in the United States have dropped to levels unseen since 1948. The Food and Agriculture Organization of the United Nations estimates that world wheat production will rise this year to nearly 664 million tons, from about 655 million tons — not enough to replenish stocks and push down prices. In December, the organization noted that high international grain prices were causing food shortages, hoarding and even riots in some places.  The NYT reports:

The United States Department of Agriculture’s 10-year forecast, released Tuesday, sees the wheat shortage as temporary. Stockpiles were predicted to fall this year to 312 million bushels, from 456 million bushels, before rebounding to about 700 million bushels by the end of the decade.Higher prices “will encourage additional acreage and production,” the report said. Wheat plantings will rise to 65 million acres in the 2008-9 season, from 60.4 million this year, the Agriculture Department said, though it predicted the number would then fall because of competition from other crops. NYTimes story

So, we can expect a year or so of relief from these prices.  And then?  "Competition from other crops" -- does that mean biofuels?  I'm still looking for an answer, so stay tuned.

Mashey on the Campaign to Deny Anthropogenic Global Warming

Here's an updated copy of John Mashey's informal paper on the denialist campaign.  Mashey on the Monckton, Schulte and Oreskes

Klamath River basin hydrology and ecology

Many of us teach some material concerning the Klamath River basin controversies.  For those who don't, the Klamath River basin in southeastern Oregon and northern California has been a case study in conflict over competing uses for water, complete with federal marshals doing battle with irrigators determined to exercise their water rights even at the risk of prosecution.   BuRec and other resource agencies have been forced to protect threatened and endangered fish species, leaving less water available for irrigation in dry years and heightened tensions among farmers and other stakeholders including commercial fishermen, Native Americans, conservationists, hunters, anglers, and hydropower producers.

National Research Council has a new book, which

"assesses two recent studies that evaluate various aspects of flows in the Klamath basin: (1) the Instream Flow Phase II study (IFS), conducted by Utah State University, and (2) the Natural Flow of the Upper Klamath Basin study (NFS), conducted by the U.S. Bureau of Reclamation (USBR). The book concludes that both studies offer important new information but do not provide enough information for detailed management of flows in the Klamath River, and it offers many suggestions for improving the studies. The report recommends that a comprehensive analysis of the many individual studies of the Klamath river basin be conducted so that a big picture perspective of the entire basin and research and management needs can emerge."

Hydrology, Ecology, and Fishes of the Klamath River Basin ...
Read this FREE online!     Full Book | PDF Summary | PDF Report Brief

   

Is There a Silver Lining for the Environment in the Economic Slowdown? -- Katrina Kuh

Weathering the storm of bad economic news over the past few months has been trying.  I've found myself quickly reaching for the tuner nob at the first mention of "marketplace report" or anything akin thereto to avoid the latest in the unrelenting stream of dire economic updates.  Throughout, I have tried to comfort myself by imagining that a recession would carry with it a silver lining -- a reduction in GHG emissions.  Experience suggests that a sure route to dramatic GHG reductions is economic downturn (see the former U.S.S.R.) and, conversely, that explosive economic growth frequently spikes GHG emissions (see China).  Indeed, the fact that the Bush Adminstration climate change strategy, see http://www.whitehouse.gov/news/releases/2002/02/20020214.html, focuses on reducing "greenhouse gas intensity" (the ratio of greenhouse gas emissions to economic output) as opposed to overall GHG emissions seems driven by a recognition of the close connection between economic output and GHG emissions.    

Ultimately, however, I haven't found much comfort in the idea that a recession could reduce domestic GHG emissions.  I suspect that this is so because in my heart of hearts I think that any short-term reduction in GHG emissions caused by a recession would likely be outweighed by the increased GHG emissions that will result if a recession derails the adoption of meaningful domestic GHG-reduction measures. 

A recession would likely pose at least two problems for the adoption of a meaningful domestic program to reduce GHG emissions.  First, a recession makes it less likely that a federal measure requiring deep GHG reductions will be enacted.  In the past week, both EPA, see http://www.epa.gov/climatechange/economics/economicanalyses.html, and the American Council for Capital Formation, see http://www.accf.org/nam.html, have released analyses of the Lieberman-Warner cap-and-trade bill that forecast that the bill will have negative eonomic impacts.  Putting aside arguments that these analyses overstate costs and undercount benefits, opponents of federal climate change legislation are going to have a receptive audient to their claims about the devastating economic impacts of climate change legislation in the context of a recession.  During a recession, these opponents don't have to win on their argument that climate change legislation will hurt the economy doesn't have to prevail -- all they need to do is sow a seed of doubt.  Second, even assuming that votes could be found to pass a perceived-to-be-costly GHG-reduction measure against the backdrop of recession, I fear that concerns about the economy would result in a very weak measure.  Finally, a recession could also play havoc with the baseline caps that have already been incorporated into the Regional Greenhouse Gas Initiative and the Lieberman-Warner bill because any cap calculated prior to a recession will be bloated with "hot air" during a recession.  And a recession could imperil the flow of financial support to renewable energy research and development. 

So for now I'm left looking for a silver lining to the bad economic news.  If you think of anything, let me know.

The Games EPA Plays

Regwatch reported on Friday that EPA is delaying greenhouse gas emission regulations by publishing an advance notice of proposed rulemaking:

As Reg•Watch recently reported, EPA staff had drafted preliminary documents describing the dangers associated with greenhouse gas emissions. This so-called endangerment finding would set in motion a series of regulatory actions.  Staff also drafted a regulatory proposal that called for limits on vehicle emissions. In a letter to EPA Administrator Stephen Johnson, Rep. Henry Waxman☼ (D-CA) wrote, "According to EPA staff, the proposal to regulate CO2 emissions from motor vehicles was 'about 300 pages;' and had 'extensive analysis about ... the costs and benefits.' " According to Waxman, Johnson was "personally involved in the decision making." He signed off on the document finding greenhouse gas emissions endanger public welfare and endorsed his staff's proposal for a reduction in vehicle emissions.  Yesterday, Johnson announced his intent to publish an Advanced Notice of Proposed Rulemaking, which will do nothing more than gather comments on the issue of greenhouse gas regulation. Critics are calling the move a stall tactic. Indeed, it appears as though the White House pressured EPA to abandon its draft regulation, despite the diligent efforts of EPA staff. Instead, the Advanced Notice will provide all interested parties an opportunity to rehash arguments which are already well-documented and which EPA fully understands.

Given EPA's track record, the ANPR means that EPA will finalize regulations somewhere between 5-7 years and never, if simply allowed to play its standard games.  Of course, these are not standard games -- but apparently White House inspired games.  And White House involvement gave rise to Waxman's oversight hearing and the lawsuit filed by states and NGOs to require EPA action to comply with Massachusetts v. EPA. 

So, inquiring minds want to know, does a ANPR satisfy the requirement for EPA to act.  Who knows?  Only time (and the Supreme Court) would tell.  However, we'll never know because Congress and a new White House will act long before the courts have a chance to tell us.  Without a doubt Congress in national GHG legislation will attempt to avoid application of the rest of the Clean Air Act to GHGs such as carbon dioxide.  It will be a bit of a delicate exercise though because many other GHGs are already regulated under 112 as hazardous air pollutants or under Title VI as ozone-depleting substances.

The provisions regarding CAA applicability and preemption of state and local law will prove to be some of the most interesting and intricate legal issues in tailoring the GHG emissions cap-and-trade legislation.  This is one reason why some straight-forward command & control regulations might make sense.  For example, ban operation of any new fossil-fuel burning electric generating plant without carbon capture and sequestration or equally effective carbon removal.  That avoids any problem with NSR, NSPS, or MACT.  Then, apply a cap and trade system to accomplish the equivalent of the lead phasedown for existing plants.