Talk about your pro-bowl quality punts…U.S. EPA’s Environmental Appeals Board made a major one this week on the issue of climate change. All eyes were fixated on the Board waiting for their decision on whether the Clean Air Act requires immediate regulation of greenhouse gases (GHGs-which include CO2). The Board’s answer? We would rather let the Obama Administration decide.
Others on the web point out this may hold up permits for coal plants while EPA deliberates on what to do next. There is uncertainty after the decision, but other Courts don’t have to follow the EAB ruling.
Background: For those not keeping up to date on the latest litigation over regulation of GHGs, a major decision was issued yesterday- Deseret Power Electric Cooperative (Bonanza). At issue in the case was whether the current language of the Clean Air Act requires immediate regulation of GHGs.
The Sierra Club appealed a federal permit that would have allowed construction of a new coal fired power plant. The Sierra Club argued the permit was illegal because it did not require control of CO2 and the Clean Air Act (CAA) mandates regulation of the pollutant.
Under the CAA, EPA would have to require controls for CO2 if it is a pollutant "subject to regulation" under the Act. The issue turned on the amount of regulation necessary to trigger this provision. The Clean Air Act does require monitoring and reporting of CO2 for some sources. But EPA argued monitoring is not enough, claiming that it has interpreted "subject to regulation" as meaning the Agency has set a standard requiring reductions, not just monitoring of emissions.
Implications: A win for the Sierra Club would have had immediate and dramatic impacts on business across the country. Hundreds of thousands of businesses, even commercial buildings may have needed a federal air permit to control CO2 emissions. The EPA would have been overwhelmed with a tidal wave of new work. Why?
As discussed in a prior post, the permit thresholds in the CAA are extraordinarily low in the context of greenhouse gases. Just how low? The Act requires federal regulation for sources that emit 100 or 250 tons of a pollutant, depending on various factors. That’s fine for traditional pollutants like sulfur dioxide and soot, but ridiculous when viewed in the context of greenhouse gases. As a comparison, California’s Climate Change Program (AB-32) uses a threshold of 25,000 metric tons.
On the other hand, if the Board sided with U.S. EPA then regulation of GHGs would be delayed until either U.S. EPA completed its lengthy rulemaking process or legislation is enacted by Congress.
Decision: The Board definitely punted. It did not agree with the Sierra Club that the plain text of the CAA requires CO2 to be regulated. However, it rejected the EPA’s position that an analysis of its historical interpretations forecloses the possibility that monitoring requirements are sufficient to trigger the need to regulate GHGs as a pollutant.
The Board returned the permit to the Agency for further deliberation. The Board said it is within EPA’s discretion to begin regulating GHGs because the CAA includes monitoring requirements. The Board concludes with the following paragraph:
Accordingly, we remand the Permit to for the Region (U.S. EPA) to consider whether or not to impose a CO2 BACT limit in light of the Agency’s discretion to interpret, consistent with the CAA, what constitutes a "pollutant subject to regulation under this Act." In remanding this Permit to the Region for reconsideration of its conclusions regarding application of BACT to limit CO2 emissions, we recognize that this is an issue of nation scope that has implications far beyond this individual permitting proceeding. The Region should consider whether interested persons, as well as the Agency, would be better served by the Agency addressing the interpretation of the phrase "subject to regulation under this Act" in the context of an action of national scope, rather than through this specific permitting proceeding. (emphasis added)
In otherwords, we want the Obama Administration to decide this through a regulatory interpretation that will apply universally and not by us requiring it in the context of a single appeal of a permit.