• EPA Greenhouse Gas Regulations Cause Political Discord
  • March 19, 2010 | Authors: William "Bill" R. Derasmo; Kevin C. Fitzgerald; Peter S. Glaser
  • Law Firm: Troutman Sanders LLP - Washington Office
  • On February 22, 2010, the Environmental Protection Agency (“EPA”) announced that it will begin to phase in permit requirements and regulation of greenhouse gases (“GHG”) for large stationary facilities at the start of 2011.  Currently the EPA is scheduled to take action on its first round of GHG regulations under the Clean Air Act (“CAA”) around April 1, 2010. 

    Since the EPA issued its Endangerment Finding (see December 11, 2010 edition of the WER), 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 plans to 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 thus, 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.

    On February 22, 2010, EPA administrator Lisa Jackson announced EPA’s intention, via letter to Senator John D. Rockefeller (D-WV), 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.  She did not provide any further details in the letter.  On March 4, 2010, Sen. Rockefeller introduced legislation to impose a two-year moratorium on the EPA’s ability to regulate greenhouse gases from power plants and other stationary emitters.

    Led by Senator Lisa Murkowski (R-AK), 38 Senators, including three Democrats, introduced a resolution in January under the Congressional Review Act disapproving of 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.

    The letter from Lisa Jackson is available at  http://epa.gov/oar/pdfs/LPJ&under;letter.pdf.