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ABSURD –adjective 1.utterly or obviously senseless, illogical, or untrue; contrary to all reason or common sense; laughably foolish or false: an absurd explanation. –noun 2.the quality or condition of existing in a meaningless and irrational world. |
It is hard to believe but there are those who think regulating greenhouse gases under the current framework of the Clean Air Act (CAA) is the right thing to do. (see post "Politics Won’t Decide Whether CO2 is Regulated Under the Clean Air Act"). Some of these same individuals assert that the Bush Administration was directly responsible for U.S. EPA’s Administrator Steve Johnson’s description of the Clean Air Act as "ill-suited" for regulating greenhouse gases (GHGs).
However, an unbiased assessment of the structure of the Clean Air Act shows a regulatory mess would ensue if current CAA language was used to control GHGs. In fact, I have heard senior staff at U.S. EPA express grave concern as what may follow if regulation of GHGs was required without amendment to the Clean Air Act.
Take the most significant problem with using the CAA to regulate GHGs-permitting thresholds. Under U.S. EPA’s New Source Review (NSR) program a federal air pollution control permit is required anytime you have a source exceed "major thresholds." 40 CFR section 52.21(b)(1)(i). The CAA sets the major threshold at any source that has the potential to emit 250 tons of a regulated pollutant. The limit is 100 tons for specific types of sources or sources in nonattainment areas. U.S. EPA’s Title V program requires a Title V air permit for source over 100 tons.
The 250/100 ton thresholds work for pollutants like fine particles or ozone precursors because they capture large sources. The thresholds trigger around 200-300 NSR permits per year. The Title V threshold has led to issuance of around 18,000 Title V air permits in the country.
However, greenhouse gas emissions, in particular CO2, are emitted in much higher quantities. Staff at EPA working on GHG regulation say they typically start paying attention to sources that emit 10,000 tons of CO2 per year. For comparison, California’s climate change law (AB32) establishes a mandatory reporting threshold of 25,000 metric tons.
If the 250/100 tons thresholds were applied to GHGs, U.S. EPA and state EPA’s would be flooded with new permits. U.S. EPA predicts there may be some 2,000-3,000 federal NSR permit per year and perhaps as many as 500,000 Title V sources in the Country. Included in these numbers are small sources that have never been regulated by the Clean Air Act, such as large churches, retail stores and farms with as little as 25 cows.
The numbers I cited above were provided by U.S. EPA as estimates. The U.S. Chamber has put out a detailed report on the number of sources that would regulated based on GHG emissions thresholds in the CAA. While some may say the U.S. Chamber’s numbers are biased, I have not seen or heard anyone refute their analysis. Also, the Chamber’s numbers are generally consistent with EPA’s own projections. In U.S. EPA’s Advanced Notice of Public Rulemaking on regulation of GHGs, EPA says "application of the existing PSD (NSR) permitting program to these new smaller sources would be a very inefficient way to address the challenges of climate change." (see page 488 of the ANPR)
Those who support use of the Clean Air Act argue that U.S. EPA could adjust the permitting thresholds to capture fewer sources- an option offered by EPA in its ANPR. The problem with this argument is that the thresholds are in the text of the CAA. Basic legal principles say the plain text of a statute is entitled to significant deference.
EPA’s ANPR sets forth two legal arguments to adjust the thresholds- absurd results and administrative necessity. The "absurd results" argument is that literal application of the thresholds would lead to absurd results (i.e. regulating very small sources of CO2). The administrative necessity argument is that the burden that would ensue from application of the 250/100 ton thresholds would "prevent the agency form carrying out the mission assigned to it by Congress." (see ANPR page 497). In other words, EPA would be overwhelmed and couldn’t do its job if the thresholds are kept in tact.
I certainly can see using some of the broad concepts contained in the Clean Air Act to regulate GHGs. However, Congressional action is needed to amend those provisions and make them fit for dealing with climate change. Congress should not wait to act. It is very possible a court could decide the CAA applies to GHGs without further action, thereby triggering the "absurd" results noted by EPA.