In early November, the EPA sent to OMB the next significant regulation governing greenhouse gas emissions. Under the latest rule, EPA would establish CO2 emission standards for new and modified coal-fired power plants.
The new rule is titled the Greenhouse Gas New Source Performance Standard (NSPS) for Electric Utility Steam Generating Units. The NSPS standards are based on the best demonstrated technology (BDT) that has been demonstrated to work in a given industry, considering economic costs and other factors. The standard can vary from source to source. It could be a numerical emission limit, a design standard, an equipment standard, or a work practice standard.
The proposal will clearly be the next in an ongoing debate regarding EPA regulations and jobs.
“EPA will work with OMB throughout the interagency review process and will issue the proposal when this review is complete,” said EPA spokeswoman Betsaida Alcantara. “EPA has engaged in an extensive and open public process to gather the latest and best information.”
In a story in the LA Times, the Heritage Foundation attacked the latest EPA proposal:
"We don’t believe that unelected bureaucrats should be doing what Congress was elected to do," said Nicolas Loris, policy analyst at the Heritage Foundation, which has battled the EPA regulation of carbon from the outset. “The economic costs of regulation by the EPA or by a cap-and-trade system far outweighs any environmental benefit we would get from these measures."
Asked how the Heritage Foundation would like to see this problem addressed, he added: "First we need to step back and look at what the real problem is: CO2 isn’t black smoke that is emitted from factories; it’s a colorless, odorless gas. Does it contribute to global warming and climate change? Sure. But it’s the role of Congress to figure out the best way to address those effects in a way that protects our economy."
Inability of Congress to Act Leave Void EPA Has Authority to Fill
In Congress, there appears to be no pragmatists anymore, especially when it comes to EPA regulatory authority. The approach from either side tends to be all or nothing..
With Congress deadlocked the policy vacuum will be filled. In this case, EPA has the authority under the Clean Air Act to regulate greenhouse gases (GHGs). The Supreme Court in Massachusetts v. EPA already declared CO2 and the other GHGs a "pollutant" under the Clean Air Act that can be regulated.
In fact, EPA has been sued multiple times to exercise this authority. As long as the Clean Air Act remains unchanged, the Court cases are generally going to support EPA’s authority. While the Heritage Foundation is correct that CO2 is much different than the other "pollutants" regulated under the Clean Air Act, unless Congress acts to change the law to treat it differently EPA will and is legally obligated to implement new regulations.
D.C. Circuit Panel Selected to Hear Challenges to EPA’s Existing GHG Rules
While EPA is poised to issue its NSPS to control CO2 from power plants, its earlier GHG regulations have been challenged. There are two main GHGs rules being challenged:
- EPA’s "endangerment finding"– a prerequisite to regulating GHGs from motor vehicles. In making the finding, EPA was required to review the latest science and determine whether GHGs endanger human health and the environment.
- EPA’s "Tailoring Rule"– EPA recognizes that CO2 is emitted in orders of magnitude greater quantities compared to other Clean Air Act pollutants. In an effort to make the existing structure of the Clean Air Act fit GHGs, EPA issued the tailoring rule which raised the trigger thresholds for certain federal permitting requirements (i.e. New Source Review) even though the triggers appear in the Clean Air Act itself.
The panel in the D.C. Circuit that will be hearing these challenges was recently announced. An excellent article on Greenwire discusses the three judges on the D.C. Circuit panel. The judges are Chief Judge David Sentelle, a conservative appointed by President Reagan, and two Clinton appointees: Judge Judith Rogers and Judge David Tatel. From the article:
All three had some involvement when the court tackled Massachusetts v. EPA, the case that — once it went up to the Supreme Court — ultimately gave EPA the authority to regulate carbon emissions.
Lawyers familiar with the litigation over the rules say the panel probably favors EPA based on each judge’s record in environmental cases and regulatory cases in general.
Overall, the panel "will examine the arguments fairly but rigorously," said Jonathan Adler, who heads the Center for Business Law and Regulation at Case Western Reserve University School of Law.
"This may appear to be a panel predisposed to support the EPA, but it is also a panel that is not likely to let the EPA get away with slipshod arguments," he added.
The "tailoring" rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions, is the one that is viewed to be most vulnerable. Critics say it essentially rewrites the Clean Air Act.
Given the scientific foundation that supports the conclusions climate change is real and humans are contributing to the problem, it is unlikely that the Court will overturn EPA’s Endangerment Finding. However, as discussed in the article and in prior posts, EPA "Tailoring Rule" is based on a house of cards. A fundamental axiom of the law is you cannot rewrite a statute through rulemaking.