May you live in interesting times….Yesterday EPA Administrator Jackson issued a letter granting the Sierra Club’s petition for reconsideration of a Deseret Power memo issued by former EPA Administrator Johnson. The Petition seeks reconsideration of the Johnson memo which interpreted EPA regulations defining the pollutants covered by federal permitting under the Clean Air Act. The Johnson memo said that CO2 was not a regulated pollutant under the Clean Air Act (CAA) for purposes of permitting.
The memo was issued following the decision by the EPA’s Environmental Board of Review in the Deseret Power case concluding the CAA was ambiguous and that EPA had discretion to determine whether CO2 was a pollutant subject to regulation. Johnson, in one of his last acts before leaving office, tried to fill the void by issuing an interpretive memo determining CO2 was not a regulated pollutant.
There was tremendous pressure on new EPA Administrator Jackson to revoke, stay or invalidate the memo. Such action would have effectively put on hold about a 100 pending permits for coal fired power plants. In a prior post, I predicted that despite the pressure Jackson would take a more deliberate approach. She has done exactly that by not issuing a stay and announcing EPA will embark on a formal rulemaking process. (even I get one right now and then)
While Jackson has chosen to address the issue slowly, she did include language in her letter that cast a great deal of uncertainty regarding pending permits:
In the meantime, the Agency emphasizes a point noted in the memorandum itself: the memorandum does not bind States issuing permits under their own State Implementation Plans. In addition, given the Agency’s decision to grant reconsideration of the memorandum, other PSD permitting authorities should not assume that the memorandum is the final word on the appropriate interpretation of Clean Air Act requirements.
While this statement casts some uncertainty, the Johnson memo is still legally effective. Unlike others in the blogosphere predicting stoppage of all permitting for new coal plants, I believe permits will still move forward in State’s willing to issue them.
Yesterday, EPA Administrator Jackson also issued a statement regarding her decision to grant reconsideration:
“I am granting this petition because we must learn more about how this memo affects all relevant stakeholders impacted by its provisions,” said EPA Administrator Lisa P. Jackson “This will be a fair, impartial and open process that will allow the American public and key stakeholders to review this memorandum and to comment on its potential effects on communities across the country. EPA’s fundamental mission is to protect human health and the environment and we intend to do just that.”
My take on the statement is: a) EPA intends to move through a slow rulemaking process; and b) once EPA completes the rulemaking process you can pretty much count on the fact CO2 emissions will be regulated.