Another Week, More Developments on EPA Regulation of GHGs
After testifying before the Senate Committee on Appropriations on Wednesday, U.S. Environmental Protection Agency (EPA) Administrator Lisa Jackson announced to reporters that the Agency will be delaying greenhouse gas (GHG) emissions permitting requirements and reducing the number of sources subject to such requirements, at least for the next few years. The Agency’s revisions to its “tailoring” rule come amidst Congressional attacks from both sides of the aisle intended to temporarily block GHG regulation and veto EPA’s finding that GHGs endanger public health and welfare (the “Endangerment Finding”).
The Endangerment Finding is the direct trigger for EPA regulation of GHG emissions from new motor vehicles, expected by the end of March or the beginning of April of this year. Because that regulation also is expected to trigger regulation of GHG emissions from stationary sources under the Prevention of Significant Deterioration (PSD) permit program, EPA also is expected to issue its “tailoring” rule at about the same time as the motor vehicle rule, which will attempt to limit GHG regulation under the PSD program to larger stationary sources. Jackson stated last week that the threshold emissions level to trigger PSD regulation will be increased and the time frame for applying PSD regulation extended. According to the Administrator, sources emitting less than 75,000 tons of GHG will not need a permit for at least the next two years. Fewer than 400 facilities are expected to be subject to permitting requirements in early 2011, Jackson said. She also said that in the second half of 2011 as many as 1,700 additional permits will need to be reviewed for GHG emissions, and in 2013 about 3,000 additional sources could need permits for GHG emissions.
While state and local air regulators applauded EPA’s delay decision, some Democrats and Republicans in both the House and Senate pushed forward with legislative attempts to derail EPA GHG regulation. Top House Republicans unveiled a plan to introduce a formal resolution to effectively veto EPA’s Endangerment Finding. At least 86 Republicans have signed onto the resolution as co-sponsors, according to a spokesperson for lead sponsor House Energy and Commerce Committee ranking member Rep. Joe Barton (R-Texas). The veto resolution mirrors a resolution by Sen. Lisa Murkowski (R-Alaska) and several House Democrats. The measures are aimed at using the Congressional Review Act, which establishes special procedures for disapproving regulations from federal agencies, to block the Endangerment Finding from taking effect. If enacted, the resolutions would prohibit EPA from reissuing the Endangerment Finding or any substantially similar finding without the authority of another enacted law.
Observers predict the resolutions face an uphill battle in Congress and a likely veto by President Obama if passed. On the other hand, many think that passage of the resolutions in the House or Senate would represent a symbolic defeat to EPA in its effort to commence regulating GHGs and the introduction of the resolutions may be contributing to EPA’s delay of GHG regulation of stationary sources under the PSD program.
Meanwhile, four powerful coal-state Democrats introduced companion bills in the House and Senate on March 4th that would block EPA from implementing any climate-related stationary source rules for the next two years. The bills are intended to give Congress time to pass its own climate change legislation while preventing the Agency from proceeding under the current structure of the PSD program. Sen. Jay Rockefeller, Rep. Nick Rahall, and Rep. Alan Mollohan, all of West Virginia, and Rep. Rick Boucher of Virginia were co-sponsors of the bills. Sen. Robert Byrd of West Virginia, who has previously expressed concerns with GHG regulation, declined to co-sponsor the legislation, citing EPA’s decision to delay stationary source GHG regulation. Several top Democrats, including Sen. John Kerry (D-Mass.) and Sen. Barbara Boxer (D.-Calif.), vowed to oppose attempts to block EPA’s regulatory authority.
Finally, on March 4th, EPA’s action on reconsideration of the so-called Johnson Memorandum was sent to the Office of Management and Budget (OMB) for final review. The main issue under consideration in the reconsideration action is when, following EPA’s issuance of its motor vehicle GHG rules, GHGs should be considered to be regulated for purposes of the PSD program.