Lets get everyone up to speed with events on regulation of greenhouse gases (GHGs) including CO2:
1. Supreme Court says CO2 is a pollutant under the Clean Air Act. In Massachusetts v. EPA decided in April of 2007, the Supreme Court held that GHGs are pollutants that may be regulated under the Clean Air Act. But the Court did not go far enough to say EPA must regulate GHGs. At issue in this case was Section 202 of the Clean Air Act which covers regulation of greenhouse gases from motor vehicles. For a pollutant to be regulated under Section 202 it must be “reasonably be anticipated” to “endanger public health or welfare.” Therefore, EPA must conclude GHGs from motor vehicles endager public health before regulation commences The Court remanded the Section 202 determination to EPA to make the necessary "endangerment finding."
2. U.S. EPA says Clean Air Act is "ill suited" to regulated GHGs– in July 2008, the EPA released its Advance Notice of Proposed Rulemaking on GHG regulation. Along with its release, EPA Administrator Johnson made statements that the Clean Air Act is an ill-suited vehicle for regulation of GHGs. The ANPR represents EPA’s response to both the Supreme Court’s decision in Massachusetts v. EPA and a number of pending petitions to regulate greenhouse gas emissions from most mobile and stationary air pollution sources. The ANPR includes extensive analysis of the science related to climate change, technologies available for reducing greenhouse gas emissions, and the various statutory provisions that may be implicated by an endangerment finding under section 202 of the Clean Air Act. It solicits public comment on a variety of important issues.
3. Environmental Groups Argue Regulation of GHGs is Not Discretionary by EPA– Many environmental groups have argued that the finding that GHGs are a "pollutant" under the Clean Air Act is enough to trigger immediate regulation under permitting provisions of the Act. They argue the endangerment finding necessary for regulation under Section 202 is not necessary to begin regulating GHGs under other provisions of the Act.
4. Litigation Ensues Over Whether Regulation of GHGs is Discretionary- As discussed in previous posts, a number of legal challenges have been filed to the issuance of permits for construction of new coal fired power plants. Environmental and Citizen Groups have challenged the permits on the basis the failed to control CO2 as a pollutant. U.S. EPA and State EPA’s have argued that C02 and the other GHGs are not "regulated" pollutants under the Act. They distinguish the Massachusetts decision by saying the Court only found GHGs to be a pollutant. Therefore, U.S. EPA must complete its rulemaking process before GHGs are regulated. At least one State Court has already disagreed with EPA’s interpretation. A Georgia Court has already ruled the GHG are a regulated pollutant that must be considered as part of EPA’s New Source Review (NSR) permitting program.
And now the latest….
While U.S. EPA methodically proceeds down its rulemaking path, it is more than likely the Courts will not wait for EPA before deciding whether CO2 is a regulated pollutant. In fact, I believe the landmark case to decide whether regulation of GHGs must occur immediately is about to be decided. In the case, the Sierra Club is challenging EPA’s issuance of a permit for a waste-coal-fired generating unit at a power plant in Utah that did not establish Best Available Control Technology (BACT) emissions limits for CO2
On September 12, 2008, reply briefs were filed in the case of in the Deseret Power Electric Cooperative (Bonanza) case which is before U.S. EPA’s Environmental Appeals Board. A decision in the case could be expected in the next couple of months. To give you an idea of the level of attention this case is attracting, the following business groups filed briefs in the litigation: U.S. Chamber of Commerce, National Association of Manufacturers, American Petroleum Institute, American Chemistry Council, etc.
Sierra Club argues that because the Supreme Court has already determined that CO2 is an “air pollutant” under the Clean Air Act (CAA), that finding triggers EPA’s obligation to establish BACT for CO2 emissions in the permit. EPA and the business groups counter that the Supreme Court only EPA found CO2 to be a “pollutant” under the CAA, it is not yet a pollutant “subject to regulation” for which BACT is required until EPA concludes is rulemaking process.
The Sierra Club together with New York, California and other Northeast States have put forward a novel argument that may tip the scales in their favor based upon comments I have heard from EPA officials. The Sierra Club cites to Section 821 of the Clean Air Act which establishes monitoring requirements for CO2. The following excerpt is from a Sierra Club brief filed in the litigation:
In § 821 Congress ordered EPA “to promulgate regulations” requiring that hundreds of facilities covered by Title IV monitor and report their CO2 emissions, and in §165, Congress required a BACT limit for “any pollutant subject to regulation” under the Act. The only possible reading of these two statutory mandates is that Congress intended that EPA apply BACT limits to CO2 pursuant to §165.
The ultimate issue boils down to whether monitoring requirements rise to the level of "regulation" of CO2 or does EPA have to establish actual air quality standards or emission limits for CO2 and other GHGs.
The decision in this case will have massive repercussions. If EAB decides in EPA’s favor, regulation of GHG will likely be delayed for at least a couple of years. If the EAB agrees with the Sierra Club, EPA will need to immediately begin regulating GHG in permitting actions. As I will discuss in an upcoming post, such a decision could overwhelm EPA and the States in new permits for hundreds of thousands of new sources.