(Image: CO2 Emissions in the U.S.)

Perhaps its obvious that the window of opportunity to obtain an air permit without CO2 controls is closing quickly.   Don’t delude yourself that controls will wait for Congressional action on climate change.

The battle over requiring CO2 controls without additional rulemaking or legislation is being waged right now. The saga is being played out in the aftermath of the Deseret Power decision and the ensuing memo issued by EPA Administrator Johnson.  Here is a quick synopsis of what has transpired to date:

  1. Deseret Power rejected EPA’s basis for approving permits without CO2 controls.  However, the Environmental Review Board left the window open.  It said EPA could come out with a new position on the issue as to whether CO2 is a "regulated permit."
  2. EPA Administrator Johnson quickly took advantage of the opening issuing a new interpretative memo saying the Clean Air Act’s requirement to monitor CO2 was not tantamount to regulation of CO2.  Therefore, new permits did not need to include controls for CO2. 
  3. In the latest round of the Deseret saga, the Sierra Club has filed a petition challenging the legality of the Johnson memo.  Citing Section 307(d) of the Clean Air Act, the group argues EPA’s memo amounts to a new substantive rulemaking that must go through the notice and comment process.  If EPA denies the petition, the Sierra Club can appeal directly to the D.C. Circuit Court of Appeals.  The hope is that if the memo is declared illegal an Obama Administration would issue a much different memo- one saying controls for CO2 are required.

To me the saga over the Deseret Power decision is a simply good theater.  The fact is CO2 will be a regulated pollutant and soon.  In my mind, if you are seeking an air permit for a source with significant CO2 emissions you may have less than a year or so to get your permit before the whole playing field changes.   We should look to clues from President-elect Obama’s pick to head the EPA as to what may happen in the near future.

President-elect Obama named Lisa Jackson to head U.S. EPA.  Ms. Jackson was the former Commissioner of the New Jersey Department of Environmental Protection.  According to some national news organization she brings a mixed record.  U.S. News and World Report stated the following:

She is credited with helping put New Jersey in a leadership role on the issue of climate change and with encouraging the state to adopt a moratorium on building new coal plants. Yet she also has made choices that have been applauded by industry, including an effort earlier this year to use private companies to clean up thousands of contaminated sites around the state.

In recent days, when Jackson’s name emerged as Obama’s likely pick, some of these issues resurfaced. A few New Jersey-based environmental groups have put out press releases criticizing Jackson’s record, and their comments have gotten national attention. But many observers say the criticism is overblown and that Jackson, though having at times taken stands the groups didn’t fully agree with, has largely been an ally.
 

Jackson’s background shows EPA is likely to take some form of quick action on CO2 shortly after January 20th with Obama is sworn into office.  New Jersey participates in RGGI which is the cap and trade program for CO2 emissions from power plants in the Northeast.  Is no surprise Jackson and the rest of the Obama team strongly supports a national greenhouse gas cap and trade program.  However, such legislation is likely a year away at a minimum. 

What may happen in the interim?  There are several issues pending before U.S. EPA that could result in regulation of CO2 in the near term.  

  1. The "endangerment finding" on CO2- EPA still needs to take action in response to the Supreme Court’s decision in Massachusetts v. EPA.  This is the case regarding California’s request for a waiver to set standards for CO2 from vehicles.  While the Court said CO2 is a pollutant, under Section 202(a)(1) of the Clean Air Act vehicle emission of greenhouse gases are not regulated until the EPA determines CO2 from cars would "endanger  public health and welfare."
  2. Deseret Power interpretive memo-   An Obama Administration could also try and retract the memo issued by EPA Administrator Johnson in response to Deseret Power. 
  3. Comprehensive Rulemaking on GHG Regulation-  EPA has issued its Advanced Notice of Public Rulemaking seeking comments as to whether to comprehensively regulate CO2 and other GHGs under the Clean Air Act.  An Obama Administration could accelerate action on this rulemaking effort. 

One of these three course of action will happen.  The question is just how soon.  New Jersey declared CO2 an air contaminant back in 2005.  In order to make such a declaration, New Jersey had to go through a formal rulemaking process declaring CO2 "injurious to human health and welfare."  Take a look at the conclusions in the NJ rulemaking, don’t they appear to be exactly what would be need for an endangerment finding?

This interpretation (declaring CO2 an air contaminant)  is consistent with the statutory definition of air pollution at N.J.S.A. 26:2C-2 and the Department’s regulatory definition of “air pollution” at N.J.A.C. 7:27-5.1, which states that “’air pollution’ means the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or plant life or property, or would unreasonably interfere with the enjoyment of life or property throughout the State ….”


The exclusion of CO2 as an air contaminant is no longer valid, given the intent of the Department’s definition of air contaminant throughout N.J.A.C. 7:27 and the definition of air pollution at N.J.A.C. 7:27-5.1, because scientific evidence has evolved to the point that adverse environmental and human health impacts due to increasing concentrations of CO2 in the atmosphere are now clear.

Also, New Jersey passed the New Jersey Global Warming Response Act which committed the state to returning global warming pollution to 1990 levels by 2020 and cutting global warming pollution levels by 80 percent by 2050.  New Jersey is only one of three states to make greenhouse gas reductions state law. 

The pressure on Jackson to take action to block new coal plants and regulate CO2 will be enormous.  She will have a hard time defending a slow and deliberate pace when her State has already taken significant action, including a State-like "endangerment finding."  This means some type of action to regulate CO2 will likely come in the first year of the Obama Administration.  As a result, the window of opportunity to avoid CO2 controls in a permit is closing quickly.   

The most likely course of action could be peeling the endangerment finding away from the ANPR and proceeding with a finding CO2 does endanger public health.  The other option that could have a quick and dramatic impact would be to retract the Johnson memo responding to Deseret Power.  A Jackson EPA could declare the memo was issued illegally and issue a new interpretive memo. 

(Image:  flickr Tom Raftery)