Clean Air Act

One Regulatory Program Per Customer, Please

The menu of policy options for reducing greenhouse gas emissions and tackling climate change is pretty lengthy, and the portions offered are quite substantial. Congress now has to make the choice of which regulatory option to order, and as we saw in last week’s hearings at the Senate Environment and Public Works Committee, they are open to recommendations. One interaction on Thursday between Senator Arlen Specter (D-PA) and Fred Krupp, President of the Environmental Defense Fund, highlighted the need to pick a single, effective strategy to tackle climate change and not overstuff our economy with duplicative regulations. The exchange focused on whether the EPA should continue to proceed with regulations through the Clean Air Act’s New Source Review (NSR) program even if a comprehensive climate change program is enacted.

Given existing requirements, regulation of greenhouse gases under any provisions of the Clean Air Act will trigger NSR. Under NSR rules, the construction of new stationary sources and major modifications of existing ones must be permitted to ensure that they will not contribute to significant deterioration of air quality. While NSR has long been used to regulate traditional air pollutants, when it comes to feeding an appetite for climate change regulation, NSR doesn’t really hit the spot.  NSR is rather inflexible, costly to implement, and results in relatively limited emission reductions. Given the difficulty in developing standards for the large number of sources that emit greenhouse gases and the need to provide incentives for technological change in order to achieve deep reductions over time, new source review simply isn't the right recipe for our current needs. 

This chef’s recommendation: a well-designed cap-and-trade program that is aggressive enough to yield needed reductions in greenhouse gas emissions while spurring the technological innovations we need to make those reductions and grow our economy. Enactment of a cap-and-trade program means we can send back duplicative programs like NSR and still be satisfied.

Sure, we’ll need complementary policies that work in a coordinated fashion with a cap-and-trade program. These side dishes of the cap-and-trade meal are targeted programs that are designed to enhance cap-and-trade’s impacts without getting in the way of the functioning of the primary program. A comprehensive climate bill can work just fine without NSR.

 

Michael Tubman is the Congressional Affairs Fellow

The Right Place for EPA to Start

EPA has proposed what many are calling the Agency’s first major step down the road to regulating greenhouse gas emissions from stationary sources. The newly proposed “tailoring” rule applies to requirements for major new or expanded sources and to permits for stationary sources, but does so in a carefully targeted manner.  It’s the right place for EPA to start.

It’s critical to understand both what the proposal does and doesn’t do, and why EPA needed to begin here.

Contrary to some press accounts, the proposed rule does not impose new control requirements on all large stationary sources.  Best available control technologies would be required only of new stationary sources that emit over 25,000 tons per year or major modifications to existing sources that increase emissions by 10,000-25,000 tons per year – a range EPA sought comment on. If yours is not one of the estimated 400 major new or modified facilities each year, you do not face any (new or old) control requirements limiting greenhouse gas emissions.

The proposal also requires that EPA (and states) include greenhouse gas emissions in the permits of roughly 14,000 facilities that emit more than 25,000 tons per year of these pollutants. These permits do not impose any new controls on any source; they simply incorporate into a permit EPA’s new mandatory reporting requirements.    

Georgia Court Rejects Proposed Coal-Fired Plant Over GHG Emissions Concerns

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On June 30, 2008, Judge Moore of Georgia’s Fulton County Superior Court revoked a permit for construction of a proposed 1200-megawatt coal-fired power plant in the state.  Ruling in favor of the plaintiffs, Judge Moore found that the permit filed by Longleaf Energy and approved by the Georgia Environmental Protection Division failed to consider the best available pollution control technology (BACT) to mitigate harm caused by the proposed plant’s estimated annual emissions of 8-9 million tons of CO2.  The defense had argued that a BACT analysis was unnecessary because CO2 is not a pollutant subject to regulation under the Clean Air Act (CAA). In rejecting the defense’s argument, Judge Moore cited the U.S. Supreme Court’s April, 2007 decision in Massachusetts v. EPA, in which the Court found that CO2 does qualify as a harmful pollutant that the United States Environmental Protection Agency must consider regulating under the CAA.  The ruling in Georgia marks the first instance in which a permit has been revoked in court due to concerns over CO2 emissions. The defendants plan to appeal the ruling.

Ruling
Our Analysis of Massachusetts v. EPA

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