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October 05, 2009

EPA Proposes Rules for Regulation of Greenhouse Gas Emissions
    by Robert Kropp

Basing its authority on a 2007 Supreme Court decision that the Bush Administration ignored, the Agency would require large facilities emitting over 25,000 tons of greenhouse gases to obtain permits. -- On September 30, the Environmental Protection Agency (EPA) issued a proposed rule that would require large facilities emitting over 25,000 tons of greenhouse gases (GHG) a year to obtain permits demonstrating that they are using the best practices and technologies to minimize GHG emissions. The EPA estimates that 400 new sources and modifications would be subject to annual review for GHG emissions, and approximately 14,000 large sources would need to obtain operating permits for GHG emissions.

According to EPA Administrator Lisa P. Jackson, the proposed rule would help "significantly reduce greenhouse gases from sectors that account for nearly 70 percent of non-vehicle emissions." On September 15, the Department of Transportation (DOT) and the EPA proposed a rule requiring an average fuel economy of 35.5 mpg by 2016.

The EPA based its authority to regulate GHG emissions on the Clean Air Act. The Agency's authority to do so was upheld in a 2007 Supreme Court decision that stated, "EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do."

Despite the Supreme Court directive, the EPA under the Bush Administration failed to issue proposals for the reduction of GHG emissions, prompting Representative Henry Waxman to write in a ten-page letter to the EPA Administrator at the time, "It appears that EPA's efforts to regulate CO2 emissions have been effectively halted, which would appear to be a violation of the Supreme Court's directive and an abdication of your responsibility to protect health and the environment from dangerous emissions of CO2."

In her statement announcing the proposed rule, Jackson said, "EPA is ready to work with Congress – and all of you – to bring a strong climate and energy bill to the American people. But we are not going to continue with business as usual while we wait for Congress to act. We have the tools and the technologies to move forward today, and we are using them."

Also on September 30, Senators John Kerry and Barbara Boxer followed the House of Representatives' passage in June of the Waxman-Markey climate change bill by submitting to the Senate a proposed bill that would reduce GHG emissions by 20% below 2005 levels by 2020, and by 83% by 2050. But the likelihood of Senate passage of climate change regulations in advance of the United Nations Climate Change Conference (COP15) in December increasingly seems remote at best.

Trade groups representing some of the industry sectors that are heavy emitters reacted to the EPA proposal by the questioning the Agency's authority, despite the 2007 Supreme Court decision. Charles T. Drevna, President of the National Petrochemical & Refiners Association (NPRA), said, "EPA lacks the legal authority to categorically exempt sources that exceed the Clean Air Act’s major source threshold from permitting requirements, and this creates a troubling precedent for any agency actions in the future. Today's proposal highlights the perils of forcing greenhouse gas regulations into the Clean Air Act." And the US Chamber of Commerce stated, "The Clean Air Act is not the appropriate vehicle for regulating climate change."

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