EVENTS

Date:	Friday, July 24, 2009
Time:	10:00 AM -- 11:30 AM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

WASHINGTON, JULY 24, 2009--As the Senate prepares to debate legislation which would restrict greenhouse gas (GHG) emissions, public discussion of the non-legislative carbon option--Environmental Protection Agency (EPA) regulation under the Clean Air Act (CAA)--has been limited. Roger Martella, former General Counsel to the EPA, argued at a session at AEI that EPA regulation of GHGs is coming. While Congress's path to passing carbon legislation is uncertain, the "EPA's path is a virtual certainty," he said. At AEI, scholars and guests debated what form such regulations are most likely to take.
 
Environmentalists see EPA action based on the CAA as a necessary adjunct to the loophole-ridden Waxman-Markey, while others argue that regulating carbon dioxide (CO2) under the CAA will lead to bureaucratic catastrophe, because even small emitters will be subject to onerous requirements. All agreed that Waxman-Markey is not a comprehensive piece of GHG legislation. Even if it becomes law, the EPA will still have the authority and mandate to regulate GHGs. There are disputes over what this means, however: some provisions of the CAA, like National Ambient Air Quality Standards (NAAQS), which mandate the ambient air levels of pollutants, do not make sense when applied to GHGs because CO2 is not a traditional pollutant: the problems arising from too much of it are unrelated to ambient CO2 levels in the air we breathe.  However, while groups like the National Resources Defense Council (NRDC) believe the CAA can be used more flexibly to apply to GHGs, Martella and Ross Eisenberg of the Chamber of Commerce worry that once the CAA is invoked for GHGs, it will open the floodgates for lawsuits forcing the EPA to enforce all of the CAA provisions.

David Doniger of the NRDC is concerned that Waxman-Markey's targets are not as strict as they appear due to generous offset policies, so he sees a place for the CAA to mandate “best available control technology" for emissions producers, examining the costs and benefits of emissions reduction methods, and requiring the adoption of what it determines is most efficient. Doniger also raised concerns about a provision in Waxman-Markey which would remove the EPA's ability to apply this type of analysis to existing sources, like coal plants that are already operational. Because coal is a major contributor to GHG emissions, Bruce Nilles of the Sierra Club said that the CAA must be applied to coal plants. Waxman-Markey exempts both existing coal plants and ones which have begun the permitting process, so EPA regulation will have to fill that gap. Climate legislation that does not encompass coal plants will not reduce CO2 emissions.

Eisenberg argued that the CAA cannot be used piecemeal on GHGs: once the EPA applies the CAA to cars, lawsuits can easily force its extension to everything--a bureaucratic nightmare. Similarly, applying the CAA to GHGs will also trigger provisions that don't make any sense to apply to GHGs--like NAAQS. The CAA requires the EPA to regulate all entities producing more than 250 tons of pollutants per year, which, in the case of CO2, would apply to a million entities--large buildings, including hotels and schools, as well as 17,000 farms. The permitting process under the CAA is expensive and inconvenient for both businesses and states. This will drive the costs of construction up so high that many projects simply will not be built, and Congress needs to address this.

Doniger challenged Eisenberg, saying the argument that EPA regulation would extend too even small emitters was a "transparent rhetorical trick," because it would be a simple matter for the EPA or for Congress to increase the threshold from 250 tons to 10,000 or 25,000 tons. Further, Doniger said the NRDC and the Sierra Club have no interest in forcing the EPA to enforce the 250-tons standard. Eisenberg retorted that the Center for Biological Diversity has stated that it is ready to sue to force that extension, and that the courts are likely to require the EPA to enforce the letter of the law, including the 250 ton threshold, regardless of its own preferences, or those of the NRDC or the Chamber of Commerce.

 

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