Potential Enforcement Implications and Liabilities Associated with EPA’s Proposed Greenhouse Gas ESPS Rule

June 17, 2015

New legal review from Sidley Austin on EPA's power plant regulations

We have received several questions regarding the potential enforcement and liability issues implicated by the Existing Source Performance Standards (“ESPS”) rule that the Environmental Protection Agency (“EPA”) will release this summer. If finalized as proposed, the ESPS would risk the expansion of federal authority for enforcement actions in this sphere against States as well as numerous parties who bear no relationship to the sources that are the intended subject of § 111(d) of the Clean Air Act (“CAA”). It also could expose States and these third parties to legal action under the citizen suit provisions of the CAA by non-governmental organizations (“NGOs”) seeking to compel such enforcement actions.

Specifically, the rule proposes that either States or a wide range of private actors beyond fossil fuel electricity generators be responsible for achieving emission reductions targets for greenhouse gases (“GHGs”) set by EPA. In the proposed rule, EPA has taken the position that a broad array of entities that can be pursued to achieve GHG reductions under the ESPS rule also could be held legally liable if those reductions are not realized. Further, EPA has taken the position in the proposed rule that both the agency and NGOs can sue to enforce the obligations that are imposed as a result of the final rule.