Grist mulls over the possibility that Congress might use an appropriations rider to kill EPA authority to regulate GHGs under the mobile source and BACT provisions of the Clean Air Act, in response to Monday's revelation that EPA's endangerment finding had been sent to the White House. You can read the piece here.
[Proviso: I disagree with many of the Grist piece's characterizations of the Mass v. EPA decision; it is not quite as slam-dunk in "requiring" GHG regulation under the CAA as the piece makes it out to be.]
It is certainly true that even Democrats have been making a lot of noise about taking away EPA's Clean Air Act Authority over GHGs as a condition of creating a new climate bill. (You can see this in questioning of Lisa Jackson by the Senate Environment and Public Works committee a few weeks ago, detailed in this post.) But unilaterally getting rid of EPA CAA authority over GHGs without passing a climate bill would be pretty shocking. And I for one believe (hope?) that the White House knows what its doing, and that Congress won't be able to kill EPA authority through an appropriations rider. This can be seen in the way that the White House and EPA have broken the endangerment finding process into digestible bits--making the finding, for instance, but not creating the concomitant regulations of vehicle GHG emissions--and has been feeding those bits slowly to Congress at strategic moments--just before Kerry-Boxer was introduced, just before Ban Ki-moon's visit--to keep it moving along. (For a good overview of how this has been trucking along since last spring, see the "Climate Change" section of Ohio Environmental Law Blog, here.)
Showing posts with label BACT. Show all posts
Showing posts with label BACT. Show all posts
Wednesday, November 11, 2009
Monday, November 9, 2009
GHG Endangerment Finding Sent to White House
Apparently, EPA Administrator Lisa Jackson told Reuters today that she had sent the final version of EPA's endangerment finding for greenhouse gases to the White House on Friday. The Reuters article can be read here. (The proposed version of the finding, released last April, can be read here.)
Other news outlets, including the Wall Street Journal, are reporting the story. But the current version of the finding and the accompanying letter are not yet available on the EPA or White House web sites.
The endangerment finding was made under Section 202 of the Clean Air Act, part of its mobile source (vehicle) provisions, and is the ultimate result of the Supreme Court's 2007 decision in Massachusetts v. EPA. This pertains only to mobile sources, and, by its terms (as proposed in April) will not immediately be followed by regulations governing vehicle emissions of GHGs.
That said, a final endangerment finding will give environmentalists a strong legal case that the EPA must now issue regulations governing vehicle emissions of GHGs. EPA has also signaled that it would have to make a similar endangerment finding and issue regulations for emissions of GHGs from stationary sources, including power plants. Some (though not all) in the environmental community are eager to see EPA action via the PSD provisions of the Act, though industry supporters have warned that such a finding for stationary sources would virtually shut down the economy.
If EPA issues regulations governing vehicle emissions of GHGs, environmental litigators will be able to make a slam-dunk argument that GHG's are regulated by the Clean Air Act, and thus subject to the Act's "best available control technology" (BACT) provisions. (This is an argument they have been advancing for some time in their battle against coal-fired power plants, but is weakened by the fact that no actual regulations of GHGs have been issued under the Act. Three weeks ago, the EPA's Environmental Appeals Board (EAB) issued an order, In the Matter of BP Products North America (EAB, October 16, 2009) in which it explained that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant.")
The White House has 90 days to act, but Administrator Jackson told Reuters that she expects an expedited review. This move will put additional pressure on the Senate to continue to move forward with climate change legislation, and may also help show the world, in advance of next month's climate change negotiations in Copenhagen, that the U.S. is moving forward to regulate greenhouse gases.
More information will be posted as it becomes available.
Update: The Washington Post is reporting the story now, and confirms that the finding has not been released publicly. They obtained a statement from the National Association of Manufacturers that they are concerned that EPA is moving forward before Congress has a chance to pass its own bill (confirming that this may well be designed to place pressure on Congress, since you can be assured that NAM is calling on its connections in the Senate right now.) And they obtained a statement from environmentalists that they think that the Administration is doing this to avoid going to Copenhagen "empty handed." The full article, which reflects some great last-minute reporting by Juliet Eilperin, can be read here.
The Denver Science News Examiner is reporting the story here (and its being reprinted in the Washington D.C. Examiner, so being read for free by D.C. Metro commuters on their way to work this morning.) And BNET is reporting the story, describing the move as "Climate Bill Stimulus."
Other news outlets, including the Wall Street Journal, are reporting the story. But the current version of the finding and the accompanying letter are not yet available on the EPA or White House web sites.
The endangerment finding was made under Section 202 of the Clean Air Act, part of its mobile source (vehicle) provisions, and is the ultimate result of the Supreme Court's 2007 decision in Massachusetts v. EPA. This pertains only to mobile sources, and, by its terms (as proposed in April) will not immediately be followed by regulations governing vehicle emissions of GHGs.
That said, a final endangerment finding will give environmentalists a strong legal case that the EPA must now issue regulations governing vehicle emissions of GHGs. EPA has also signaled that it would have to make a similar endangerment finding and issue regulations for emissions of GHGs from stationary sources, including power plants. Some (though not all) in the environmental community are eager to see EPA action via the PSD provisions of the Act, though industry supporters have warned that such a finding for stationary sources would virtually shut down the economy.
If EPA issues regulations governing vehicle emissions of GHGs, environmental litigators will be able to make a slam-dunk argument that GHG's are regulated by the Clean Air Act, and thus subject to the Act's "best available control technology" (BACT) provisions. (This is an argument they have been advancing for some time in their battle against coal-fired power plants, but is weakened by the fact that no actual regulations of GHGs have been issued under the Act. Three weeks ago, the EPA's Environmental Appeals Board (EAB) issued an order, In the Matter of BP Products North America (EAB, October 16, 2009) in which it explained that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant.")
The White House has 90 days to act, but Administrator Jackson told Reuters that she expects an expedited review. This move will put additional pressure on the Senate to continue to move forward with climate change legislation, and may also help show the world, in advance of next month's climate change negotiations in Copenhagen, that the U.S. is moving forward to regulate greenhouse gases.
More information will be posted as it becomes available.
Update: The Washington Post is reporting the story now, and confirms that the finding has not been released publicly. They obtained a statement from the National Association of Manufacturers that they are concerned that EPA is moving forward before Congress has a chance to pass its own bill (confirming that this may well be designed to place pressure on Congress, since you can be assured that NAM is calling on its connections in the Senate right now.) And they obtained a statement from environmentalists that they think that the Administration is doing this to avoid going to Copenhagen "empty handed." The full article, which reflects some great last-minute reporting by Juliet Eilperin, can be read here.
The Denver Science News Examiner is reporting the story here (and its being reprinted in the Washington D.C. Examiner, so being read for free by D.C. Metro commuters on their way to work this morning.) And BNET is reporting the story, describing the move as "Climate Bill Stimulus."
Thursday, November 5, 2009
Earthjustice Petitions EPA to Revoke BACT Permit for Failure to Cover GHGs
Earthjustice announced on Tuesday that it filed a petition with EPA on behalf of National Parks Conservation Association (NPCA), Sierra Club, and Northwest Environmental Defense Center, challenging PSD and MACT permits granted to the TransAlta Coal-Fired Power Plant in Centralia, Washington, for failure to adequately control for NOx, mercury, and CO2.
In a joint press release, the groups announced that they had filed the petition for EPA review of the permit, granted by the Southwest Washington Clean Air Agency.
In a joint press release, the groups announced that they had filed the petition for EPA review of the permit, granted by the Southwest Washington Clean Air Agency.
Wednesday, October 21, 2009
EPA Holds the Line on BACT and CO2
Agency makes clear that it does not view CAA BACT provisions as applicable to GHGs
On Monday, the EPA's Environmental Appeals Board (EAB) issued an order to the Indiana Department of Environmental Management to reconsider a permit it granted for BP to expand its Whiting (Indiana) refining facility to refine oil shale. NRDC, Sierra Club, the Environmental Law & Policy Institute and others filed a petition in August 2008 for the federal EPA to reconsider IDEM's decision to grant the permit. In the petition, environmentalists alleged that IDEM had let BP get away with incomplete calculations of its emissions, and that it had failed to regulate carbon dioxide (CO2). CO2, petitioners urged, should be subject to the CAA's best-available-control-technology (BACT) requirements, CAA § 165(a), following the Supreme Court's 2007 Massachusetts v. EPA decision.
In its ruling, EAB threw petitioners a bone by conceding that the emissions calculations were incomplete, and remanding the permit for reevaluation of the aspects that incompleteness affected. (This allowed environmentalists to claim victory.) But it stonewalled on the critical CO2 point.
Petitioners urged that the BACT requirements applied to CO2 under Mass v. EPA, in which the Court held that CO2 was a "pollutant" under the CAA. This, they said, means that CO2 is a pollutant that is "subject to regulation" under the CAA and therefore subject to the BACT requirements. (See CAA § 165(a) (requiring BACT be installed preconstruction for all pollutants "subject to regulation under this chapter.")
Rather than concede that CO2 was "subject to regulation," something that Lisa Jackson's EPA has been flirting with but avoiding, the EAB held that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." The phrasing opens the door to the possibility that EPA may change its interpretation in the future--important to keeping the pressure on Congress to pass GHG-specific legislation--but maintains the status quo for now.
On Monday, the EPA's Environmental Appeals Board (EAB) issued an order to the Indiana Department of Environmental Management to reconsider a permit it granted for BP to expand its Whiting (Indiana) refining facility to refine oil shale. NRDC, Sierra Club, the Environmental Law & Policy Institute and others filed a petition in August 2008 for the federal EPA to reconsider IDEM's decision to grant the permit. In the petition, environmentalists alleged that IDEM had let BP get away with incomplete calculations of its emissions, and that it had failed to regulate carbon dioxide (CO2). CO2, petitioners urged, should be subject to the CAA's best-available-control-technology (BACT) requirements, CAA § 165(a), following the Supreme Court's 2007 Massachusetts v. EPA decision.
In its ruling, EAB threw petitioners a bone by conceding that the emissions calculations were incomplete, and remanding the permit for reevaluation of the aspects that incompleteness affected. (This allowed environmentalists to claim victory.) But it stonewalled on the critical CO2 point.
Petitioners urged that the BACT requirements applied to CO2 under Mass v. EPA, in which the Court held that CO2 was a "pollutant" under the CAA. This, they said, means that CO2 is a pollutant that is "subject to regulation" under the CAA and therefore subject to the BACT requirements. (See CAA § 165(a) (requiring BACT be installed preconstruction for all pollutants "subject to regulation under this chapter.")
Rather than concede that CO2 was "subject to regulation," something that Lisa Jackson's EPA has been flirting with but avoiding, the EAB held that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." The phrasing opens the door to the possibility that EPA may change its interpretation in the future--important to keeping the pressure on Congress to pass GHG-specific legislation--but maintains the status quo for now.
Subscribe to:
Posts (Atom)
Posts
