Administrator Jackson Releases Letter to Congress Regarding Planned Greenhouse Gas Regulations
Eight Senate Democrats recently signed a letter to the Administrator of the United States Environmental Protection Agency (USEPA), Lisa P. Jackson. The group voiced concern over the impact of various regulatory efforts aimed at reducing greenhouse gas emissions. Jackson responded to the Senators' concerns on February 22, 2010, in a letter addressed to Senator Rockefeller and presented to Congress (the Jackson Letter). Her letter provides a preview of anticipated USEPA rulemakings.
Background
In Massachusetts v. EPA, the Supreme Court determined that greenhouse gases (GHGs) are "air pollutants" under the Clean Air Act (CAA). The holding triggered the requirement for USEPA to make a determination as to whether GHG emissions from new motor vehicles cause or contribute to air pollution that endangers public health or welfare. In December 2009, USEPA determined that GHGs do endanger human health and/or welfare. Jackson's letter to Congress on February 22, 2010, addressed three primary areas of concern that have emerged since the endangerment finding: (1) the regulation of mobile sources, (2) the Johnson Memo and its criteria for application of CAA permitting requirements to stationary sources, and (3) the so-called Tailoring Rule.
Regulating Vehicle Emissions
Following its endangerment determination, USEPA has worked with representatives from states, the automobile industry and environmentalists to create a uniform set of emissions standards for Model Year 2012-2016 light-duty motor vehicles (the Light-Duty Vehicle Rule). The Jackson Letter reiterates that USEPA expects to finalize the Light-Duty Vehicle Rule in late March 2010.
Sen. Murkowski (R - Alaska), however, has introduced a bill into Congress that would undo the endangerment finding made by the Supreme Court in Massachusetts v. EPA. The senators asked Jackson how the passage of this bill would affect USEPA's authority to regulate vehicle emissions as planned. According to Jackson, if this bill passes, USEPA would no longer be authorized to promulgate the Light-Duty Vehicle Rule.
The Johnson Memo
The Johnson Memo, written by then-Administrator Stephen Johnson in December 2008, set forth USEPA's interpretation of which pollutants are "subject to regulation" under the CAA and, therefore, subject to the Prevention of Significant Deterioration (PSD) program as "regulated NSR pollutants." In short, USEPA reiterated its long-standing interpretation of "regulated NSR pollutant" to include only pollutants subject to control requirements under the CAA or an implementing regulation, but to exclude pollutants for which USEPA regulations require only monitoring or reporting. For pollutants not currently subject to control requirements, the Johnson Memo states that the pollutants would become "subject to regulation" and, therefore, "regulated NSR pollutants" once USEPA promulgates a regulation requiring control of emissions of that pollutant.
Early in 2009, USEPA agreed to reconsider the Johnson Memo. The Jackson Letter states that USEPA's reconsideration of the Memo is almost complete and anticipates USEPA will conclude that GHG emissions will become "subject to regulation" under the CAA in January 2011, when Model Year 2012 light-duty vehicles will need to comply with new GHG emission standards under the anticipated Light-Duty Vehicle Rule.
The Tailoring Rule
In October 2009, USEPA proposed the Tailoring Rule, which would set a new applicability threshold of 25,000 metric tons per year of CO2e (carbon dioxide equivalent) for major source permitting actions under the CAA, including under the PSD and Title V programs. Administrator Jackson anticipates that USEPA will issue a final Tailoring Rule that will phase in regulation of GHGs for stationary sources beginning in 2011.
- In the first half of 2011, only those sources that "that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications." This limitation would clearly constrain the applicability of GHGs under the PSD program in the first half of 2011. Less clear is how the limitation would affect the Title V program.
- Other sources would be phased in starting the second half of 2011.
- Between the second half of 2011 and 2013, the CO2e threshold for permitting would be "substantially higher" than 25,000 metric tons.
- USEPA "does not intend to subject the smallest sources to the Clean Air Act permitting for greenhouse-gas emissions any sooner than 2016."
Please contact any of the attorneys in Schiff Hardin's Environmental Group for questions regarding implications of USEPA's Proposed Rule.
RECENT ENVIRONMENTAL PUBLICATIONS
"USEPA Proposes to Prematurely End Reliance on PM10 Surrogate Policy,"Environmental Update (February 19, 2010)
"SEC Guidance," Environmental Update (February 02, 2010)
"USEPA Proposes Revised NO2 Standards," Environmental Update (February 2, 2010)
"SEC Approves Interpretive Guidance on Climate Change Disclosures," Environmental Update (January 29, 2010)
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