EPA Proposes CO2 Regulations, Seeks Comments from Public

Published September 1, 2008

The White House has announced the Environmental Protection Agency’s release of an Advanced Notice of Proposed Rulemaking (ANPR) for the purpose of regulating greenhouse gas emissions under the Clean Air Act. The ANPR was published in the Federal Register on July 30.

A 120-day comment period began that day for the public to review the ANPR and respond to the agency staff’s draft of the proposed regulation.

The ANPR is one of the steps the Environmental Protection Agency (EPA) has taken in response to the U.S. Supreme Court’s decision in Massachusetts v. EPA. The Court ruled the Clean Air Act (CAA) authorizes EPA to regulate automotive greenhouse gas emissions if and only if EPA determines they cause or contribute to air pollution that may reasonably be expected to endanger public health or welfare.

While the case specifically addressed automotive greenhouse gas emissions, the Court’s reasoning could be extended to stationary sources such as power plants.

Complex Issue

The EPA draft regulation attempts to cover every aspect of greenhouse gas emissions and reflects the complexity and magnitude of the question of whether and how greenhouse gases could be effectively controlled under the Clean Air Act.

The document summarizes much EPA staff work and lays out concerns raised by other federal agencies during their reviews of the work. EPA stated it is publishing the notice now because it is impossible to simultaneously address all the other agencies’ issues and respond to EPA’s legal obligations in a timely manner.

Vast Implications

The ANPR suggests several items for discussion and comment. There are descriptions of key provisions and programs under CAA, and the document lists a few advantages and disadvantages of regulating greenhouse gases under those provisions.

A major question is how a decision to regulate emissions under one section of CAA would lead to regulation of emissions under other sections. For example, it remains to be seen how determining the regulation of greenhouse gas emissions for mobile sources (vehicles) will affect the establishment of permitting requirements for stationary sources of listed air pollutants.

In addition, Congress will need to consider future climate legislation and the potential duplication or overlap of authorities between future legislation and regulation under the existing CAA. For example, it will have to decide whether the Clean Air Act is the appropriate authorizing legislation for greenhouse gas legislation.

Unidentified Costs of Regulation

The ANPR indicates there is a public benefit from imposing the proposed greenhouse gas regulation, but the document does not cite specific costs within a variety of economic sectors and is missing significant economic analyses that usually accompany proposed rulemakings.

Another issue requiring comment and discussion is the underlying scientific basis for an endangerment finding or analysis. Many scientific assumptions in the EPA staff document are left unsubstantiated or require clarification for an appropriate public debate.

In addition, the ANPR is seeking information regarding potential regulatory approaches and technologies for reducing greenhouse gas emissions. The document provides little indication the proposed regulatory scheme would reduce global temperatures.

No Restrictions Necessary

Chris Horner, counsel and senior fellow for the Competitive Enterprise Institute, notes the Supreme Court decision does not require carbon dioxide (CO2) restrictions, but merely a more thorough EPA analysis.

“The Court requested that EPA ground its explanation for not regulating CO2 in the Clean Air Act,” Horner said. “The Court did not, contrary to the advocacy of some in the agency, instruct it to regulate CO2. It simply conjured authority to do so where Congress clearly intended none. As such, the agency has sought comment on how to go about this task under a statute that any expert will tell you is clearly not fit for the purpose.”

Dire Consequences Expected

The Court’s decision and EPA’s subsequent ANPR are rife with the potential for mischief, Horner says.

“The consequences will follow like dominos, with even more provisions necessarily also being invoked as necessary vehicles to regulate greenhouse gases ever further. It is clear that EPA should do the right thing and stay consistent with its arguments before the Court, only this time daring to offer a reasoned explanation.

“This initial signal that they will not do so indicates that Congress–desperate to avoid responsibility for sticking the economy with this burden–will sometime in the near future be begged by the regulated community for a cap-and-trade scheme in return for clarifying that this mess is not an appropriate use of the act,” said Horner.

Horner continued, “Worse, however, is that once industry capitulates they will find they have little leverage to demand conditions necessary to keep a disaster from becoming economically paralyzing–preemption of mischievous states seeking to bring more competitive states in line, and preemption of other statutes such as the Endangered Species Act.

“This will prove to be a case study in irresponsible congressional action and inaction that should be required of all lawyers and students of policy,” Horner said.

Alexandra Liddy Bourne ([email protected]) is national legislation manager for The Heartland Institute.

For more information …

For more information on greenhouse gas emissions from transportation, go to: http://epa.gov/otaq/climate/

Further information on this action and other background information is available at: http://epa.gov/climatechange/

The link to the ANPR: http://www.epa.gov/epahome/pdf/anpr20080711.pdf