Shotgun Wedding:Regulating Greenhouse Gases within the Clean Air Act

Andrew D. Shroads, QEPRegional DirectorSC&A, Inc. (614) 432-2557 ashroads@scainc.com

History: Greenhouse Gas Timeline - I

1863John Tyndall lectures about Earth’s atmosphere exhibiting a “greenhouse effect”

1896Svante Arrhenius develops theory relating carbon dioxide (CO2) concentration to temperature changes

1958Dr. Charles Keeling begins measuring atmospheric CO2

1979World Meteorological Organization sponsors World Climate Change Conference

Continued

History: Greenhouse Gas Timeline - II

1990IPCC First Assessment Report: Emissions from human activities are substantially increasing atmospheric greenhouse gas concentration, resulting in warming of Earth's surface

1992Drew Carey reports that he would stand outside spraying aerosol cans to induce global warming

1997Kyoto Protocol ratified – legally binding commitments to reduce greenhouse gas emissions

Continued

History: Greenhouse Gas Timeline - III

2007Massachusetts vs. EPA: Supreme Court rules that Clean Air Act (CAA) gives EPA authority to regulate greenhouse gas (GHG) emissions from motor vehicles

2008EPA Administrator Johnson issues Prevention of Significant Deterioration (PSD) memo: PSD applies only to pollutants under CAA provision or EPA emissions limit

2009Administrator Jackson grants petition to reconsider Johnson memorandum

Continued

History: Greenhouse Gas Timeline - IV

2009“Prevention of Significant Deterioration and Title V GHG Tailoring Rule,” proposed rule for regulating GHG within the Clean Air Act; final rule expected Spring 2010

2009GHG from motor vehicles threatens the public health& welfare; EPA issuesSection 202 Cause or Contribute & EndangermentFindings

From Mobile to Stationary Sources

Three actions necessary to progress GHG standards from motor vehicles to stationary sources:

1. Establish GHG from motor vehicles a pollutant2009 Cause or Contribute & Endangerment

Findings 2. Regulate GHG from motor vehicles

Upcoming motor vehicle GHG emissions standards 3. Establish that federal air pollution programs are

applicable to any regulated pollutantUpcoming re-interpretation of Johnson PSD

memo

GHG-CAA benefits

The CAA already regulates six criteria pollutants, hazardous air pollutants, & ozone depleting substances

Reduced air pollution 19-92% for different pollutants over 28 year period (1980-2008)

Establishes operating and installation permits

Applies to mobile and stationary sources

Does not require new GHG legislation from Congress

Very familiar regulatory system; the framework has been around since 1970

GHG-CAA Problems I: CAA Restrictions

To define GHG as a criteria pollutant requires a National Ambient Air Quality Standard (NAAQS) and time Setup GHG monitoring network Propose standard (How much GHG is too much?) Determine attainment / non-attainment areas State Implementation Plan (SIP) call

Prohibited from regulating existing sources using a GHG New Source Performance Standards (NSPS)

Low permit applicability thresholds (100 tpy / 250 tpy)

GHG-CAA Problems II: ScaleGHG vs. Next Highest Pollutant

GHG-CAA Problems III: Scale

Cuyahoga County, (Cleveland) Ohio

Currently ~60 Title V major facilities, (4 are mega-sites)

Local Air Agency with 16 permit writers and 8 inspectors

If GHG were regulated at 100 tpy for Title V:

>1,500 ADDITIONAL TITLE V SOURCES (25× Increase)

>226 Schools >35 Hospitals / Clinics >350 Apartments

~400 Permit Writers and ~200 Inspectors

EPA Solution to GHG-CAA Problems

Tailoring Rule

EPA believes that it can “tailor” Clean Air Act requirements to better “fit” GHG emissions.

Proposed Title V / PSD applicability thres- hold of 25,000 tpy (U.S. short tons) vs. 100 / 250 tpy in CAA

Proposed PSD significance threshold of 10,000 to 25,000 tpy vs. 0-100 tpy

Tailoring rule provides a 5 year “bridge” until a final rule establishes permanent applicability thresholds

Tailoring Rule Justification

EPA recognizes that the Clean Air Act does not allow it to “tailor” applicability thresholds; however, EPA is relying on two legal principles to justify the tailoring rule

1. Absurd Results: Congress did not intend for such small sources to be included in the PSD and Title V permit programs and it will take a very long time (10+ years) to process permits.

2. Administrative Necessity: There will be so many permit applications, the PSD and Title V permit programs would be overwhelmed in a sea of paperwork.

Tailoring Rule Problems – Legal Justification

The four environmental cases EPA cites in support of its “administrative necessity” argument in the preamble all went against EPA in court

NRDC v. Train – EPA issues endangerment finding under §211 of the CAA to regulate lead as a fuel additive but attempting to avoid a lead NAAQS. Second Circuit Court rejected that EPA has the discretion to name a pollutant but not a NAAQS.

Tailoring Rule Problems – State Issues

The tailoring rule only affects sources directly under EPA jurisdiction (40 CFR Part 71 and tribal areas). Most states will have to adopt separate language within state rules to increase the applicability threshold for GHG.

EPA intends to modify its PSD and Title V approvals for local / state / tribal air programs to limit approval to programs regulating GHG over 25,000 tpy and neither approve or disapprove any program between 100 tpy and 25,000 tpy. A state could regulate GHG under 25,000 tpy by not changing its rule.

What about Congress?

Lisa Murkowski (R-Alaska) has sponsored a bill under the Congressional Review Act prohibiting EPA from regulating GHG under the CAA

The bill would only require 51 votes in the Senate (40 Republicans + 3 Democrats have pledged support); however, it also has to pass the House and be signed by the President

What Is Next?

350.org and Center for Biological Diversity have petitioned EPA to issue a GHG NAAQS.

Congressional action to modify CAA and regulate GHG: American Clean Energy and Security Act of 2009

(ACES Act or Waxman-Markey Bill), H.R. 2454 American Clean Energy Leadership Act of 2009, S.

1462 Clean Energy Jobs and American Power Act of 2009

S. 1733

Thank You.

ANY QUESTIONS?