EPA Regulation of GHGs
April 20, 2009
Richard A. Horsch, Neal McAliley
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In taking the first step towards addressing climate change through regulation of greenhouse gases ("GHGs"), EPA has released its Proposed Findings under Section 202(a) of the Clean Air Act (the "Act") that the mix of carbon dioxide and five other key GHGs constitutes air pollution that endangers public health and welfare, and that emissions of four of those key GHGs from motor vehicles contribute to that air pollution. Although the Proposed Findings apply specifically to GHG emissions from motor vehicles, there seems little doubt that after they become final, regulation under the Act will expand to other GHG sources. Most observers, including EPA, agree that the Act is ill-suited for the regulation of GHGs, and many fear that application of the Act to GHG sources could result in EPA's regulation of a vast number of large and small businesses nationwide. For large stationary sources, especially fossil fuel-fired power plants, the findings' most direct and near-term effect may well be under the Act's prevention of significant deterioration (PSD) permitting provisions, specifically the PSD requirement for the use of Best Available Control Technology (BACT) to limit emissions of "regulated pollutants." The additional uncertainty the findings inject concerning the need for BACT limits and when they might apply further clouds the permitting process for coal-fired power projects. Irrespective of the findings' actual effect in the near-term, the specter of the imposition of the Act's command-and-control regime on a vast number of GHG sources nationwide is likely to increase pressure on industry, states and other stakeholders to support the passage by Congress of more carefully-tailored national GHG legislation. EPA's action may also enhance the Administration's credibility as it prepares for international climate change negotiations on a successor to the Kyoto Protocol, which will expire in 2012.
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