With EPA scheduled to take action on its first round of GHG regulations under the Clean Air Act (CAA) around April 1, opponents and proponents of regulation played a game of back-and-forth last week on the character and timing of regulation.  By the end of the week, two things were clear:  EPA remains determined to proceed with GHG regulation, although on a somewhat slower time frame than previously announced, and significant Congressional opposition to EPA regulation, including from Democrats, remains.


Having made its Endangerment Finding, EPA is now legally obligated to issue regulations restricting GHG emissions from new motor vehicles.  Towards that end, it has issued proposed regulations that it has said that it will finalize by the end of March or beginning of April, in tandem with fuel economy regulations that will be simultaneously issued by the Department of Transportation.  These EPA motor vehicle regulations will make GHGs “subject to regulation” under the CAA, and therefore will trigger air permitting requirements for “major” stationary sources of GHG emissions under the Prevention of Significant Deterioration (PSD) program. 

Concerned that too many sources will become subject to GHG regulation under the PSD program, EPA has also proposed a “tailoring” rule that would limit applicability of the PSD program to stationary sources emitting at least 25,000 tons per year (tpy) of GHGs for a period of six years.  In a separate rulemaking, EPA further proposed that PSD regulation of GHGs would commence 60 days after publication of the motor vehicle regulation in the Federal Register.  Under this schedule, GHG regulation under the PSD program would begin around mid-June of this year.

Led by Senator Lisa Murkowski (R-Alaska), 38 Senators, including three Democrats, introduced a resolution in January under the Congressional Review Act disapproving EPA’s endangerment finding.  The resolution would prevent EPA from implementing both the motor vehicle GHG regulation and GHG regulation of stationary sources under the PSD program.  Under Senate procedural rules, the resolution does not need 60 votes and could be adopted by simple majorities in the Senate and House.  It would, however, have to be signed into law by the President.  Senator Murkowski has indicated that she intends to seek a vote on the resolution sometime this month. 

Opposition to GHG regulation under the PSD program as proposed by the Administrator was also boosted by comments filed on EPA’s regulatory proposals by the National Association of Clean Air Act Agencies (NACAA).  Although supportive overall of GHG regulation under the CAA, NACAA told EPA that the states were not ready to regulate GHGs and asked EPA for a 12-18 month delay.  Other states supportive of GHG regulation, including for example New York, New Hampshire and California, also told EPA that it was moving too fast.

Adding to the pressure mounting on EPA was a February 19, 2010 letter from 8 coal-state Senate Democrats, led by Senator Jay Rockefeller (D-WV) to Administrator Jackson expressing “concern[] about the possible impacts on American workers and businesses in a number of industrial sectors” of EPA GHG regulations.

New Administration Approach

Administrator Jackson wasted no time in responding to the letter from Senator Rockefeller et al.  Last Monday, she announced EPA’s intention to make significant changes in the tailoring rule when it is finalized.  She stated that:  (a) no stationary sources will be subject to PSD regulation for GHGs in 2010; (b) as of January 1, 2011, stationary sources that would otherwise be subject to PSD regulation for their non-GHG emissions would also become subject to PSD regulation for their GHG emissions; (c) PSD regulation of GHG emissions from the “larger” sources would begin phasing in during the latter part of 2011, and that between that time and 2013 the regulatory threshold for PSD regulation would be “substantially higher” than the 25,000 tpy level proposed in the tailoring rule; and (d) the “smallest sources” would not become subject to PSD regulation until 2016.  No further details were supplied.

On Tuesday, the action moved to the Senate Committee on Environment and Public Works, where the Administrator testified on EPA’s budget.  Senate Republicans aggressively questioned her on the so-called “climategate” revelations and indicated that these materials undermined EPA’s Endangerment Finding.  The Administrator, however, played down the importance of the climategate materials and confirmed her support of the Endangerment Finding.

By Thursday, it became clear that Administrator Jackson’s Monday announcement had not eliminated bi-partisan opposition to GHG regulation.  Two experienced Democratic Congressmen, Agriculture Chairman Colin Peterson of Minnesota and Ike Skelton of Missouri, joined with Missouri Republican Jo Ann Emerson, to introduce a resolution in the House disapproving the Endangerment Finding.  Democrats Travis Childers of Mississippi and Charlie Wilson of Ohio also reportedly signed on as co-sponsors after the measure was introduced.

Also on Thursday, the Wall Street Journal reported that the AFL-CIO’s Building and Construction Trades Department had sent White House Chief of Staff Rahm Emanuel a letter asking the Administrator to rethink regulating GHGs under the CAA.  As reported by the Journal, the union took the position that EPA’s GHG rules could have “severe negative consequences.”

Meanwhile, the legal challenges to the Endangerment Finding that have been filed in court by a number of parties will proceed, and EPA also has before it a number of petitions for it to reconsider the Endangerment Finding in light of the “climategate” material. 

March thus promises to be a very interesting month in the saga of EPA regulation of GHGs under the CAA.  How the events of the week will eventually affect congressional attempts to disapprove or affect the course of EPA regulation of GHGs remain to be played out.