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EPA Legal Memo Could Short-Circuit Court Challenges to New Carbon Rule

The U.S. Environmental Protection may have short-circuited some of the inevitable court challenges to its new carbon pollution rule by concurrently publishing a 104-page legal memorandum on its authority to regulate existing power plants under the Clean Air Act. “I’ve been involved in dozens of EPA rulemakings, and I’ve never before seen EPA release what amounts to a legal brief with a proposed rule,” writes attorney Brian H. Potts. And there’s more: “In its climate proposal, the agency did something smart: It structured the rule so that if a court doesn’t agree with certain assumptions EPA made, the other parts of the rule can stand. This bit of legal foresight should allow EPA to take more legal risks in its final rule (which could lead to larger greenhouse gas reductions), without jeopardizing the plan’s overall viability in court.”

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