On February 19th, eight Democrat Senator’s wrote a letter to EPA regarding its plans for issuance of greenhouse gas regulations for vehicles, factories and power plants. This from the Wall Street Journal:
The lawmakers, including prominent Senators Max Baucus, (D., Mont.), Carl Levin, (D., Mich.) and John Rockefeller, (D., W.V), warned EPA chief Lisa Jackson in a letter that "ill-timed or imprudent regulation of [greenhouse gases] may squander critical opportunities for our nation, impeding the investment necessary to create jobs."
The letter could boost a Republican effort led by Sen. Lisa Murkowski, (R., Alaska), to prevent the EPA from regulating stationary greenhouse gas emitters such as power plants, refineries, steel mills, chemical plants and cement kilns.
The Senators letter also showed there is still a basic misunderstanding of how regulation of GHGs emissions from vehicles are tied to stationary source regulation.
The Senators suggest EPA move forward only with the Light Duty Vehicle rule setting GHG standards for vehicles so that there can be one national standard. However, based on this comment, it appears the Senators did not understand that issuance of the Light Duty Vehicle rule will automatically trigger regulation of stationary sources without any additional EPA rulemaking.
In perhaps the quickest response in history, EPA Administrator Jackson has already released her written response. The response is notable not only for its timeliness, but the key insights it provides into EPA’s greenhouse gas (GHG) rulemaking strategy.
The fact the letter provides so much valuable information about EPA’s strategy only days after the Senator’s letter was sent can only mean EPA’s has decided on its path. Now EPA is floating a trial balloon of its strategy in its response letter. There are several key developments in the letter:
- No final GHG standards in 2010. EPA will finalize the Light Duty Vehicle GHG rule in late March. However, the first vehicle GHG standard will be effective in 2011 (Model Year 2012). EPA explains that its legal view is that GHG do not become a "regulated" pollutant under the Clean Air Act until the Model Year 2012 standards are effective in 2011. By adopting this legal interpretation, EPA is effectively buying itself a year before GHG emissions from large stationary sources will be regulated. Of course, its an open legal question as to whether future vehicle standards amount to "regulation" sufficient to trigger stationary source regulation of GHGs immediately.
- EPA is planning major changes to its proposed Tailoring Rule. In the draft Tailoring Rule, EPA proposed federal permit triggers for GHGs of 10,000 or 25,000 metric tons of CO2. Based upon this letter, EPA is proposing to go higher, thereby bringing in even fewer large stationary sources of GHGs in the short term. For example, in 2011 only sources that already trigger federal permitting for non-GHG emissions will have to evaluate their GHG emissions for controls. After 2011, the letter suggests much higher triggers than 25,000 metric tons from 2012-2016.
- EPA is buying time on BACT. Major sources triggering federal permits must install Best Available Control Technology (BACT) to reduce emissions. A major issue has been EPA’s determination of what will constitute BACT for GHGs. Especially concerning was the fact some possible controls, like carbon sequestration for power plants is not yet ready for implementation. By tying the date for regulation of GHGs from stationary sources to the 2012 model year vehicle regulations, EPA has bought itself a year to work through these issues.
A couple of final points. EPA discusses the implications of Sen. Lisa Murkowski’s proposed amendment to disapprove of EPA’s "endangerment finding." EPA states the immediate result will be revival of the California Waiver for regulation GHGs from vehicles. EPA warns there will be no national standard for motor vehicle emissions.
Also noteworthy is the fact the letter simply waives off claims that EPA may not have the legal authority to set higher trigger thresholds for stationary sources that the 100/250 tons triggers in the Clean Air Act. Administrator Jackson simply claims EPA has the authority and criticizes business groups for suggesting they would appeal the Tailoring Rule.
Finally, EPA Administrator concludes the letter by making the rather harsh statement that passage of the proposed Senator Murkowski resolution would put the U.S. behind China and more like Saudi Arabia its treatment of the issue of Climate Change. No doubt, that type of rhetoric is designed to discourage Democratic support for the resolution.
Very interesting response from EPA. It is written in such a way to suggest…"no need for immediate legislative action, nothing it really going to happen for at least a year if not longer." However, this assumes EPA has the legal authority to implement the strategy suggested in its response letter.