EPA Administrator Makes Last Ditch Attempt to Tie Obama’s Hands re CO2 Regulation
Articles — By forcechange on December 22, 2008 10:11 am
In a naked political maneuver, EPA Administrator Stephen Johnson has issued a memorandum saying that CO2 is not a pollutant that should be considered when approving new power plants.
This memorandum comes in response to a decision by an EPA panel that requires the consideration of CO2 mitigation processes in the permitting process for new coal fired plants.
GreenBiz reports on this issue:
U.S. EPA Administrator Stephen Johnson has issued a memorandum saying that carbon dioxide is not a pollutant that is subject to regulation when approving new power plants.
Johnson’s 19-page memo last Thursday produced a swift reaction from the Natural Resources Defense Council, which said the finding flies in the face of a November decision by the EPA’s Environmental Appeals Board rejecting the same line of reasoning Johnson laid out in his memo.
“It’s a marvel to behold an EPA action that so utterly disdains global warming responsibility and disdains the law at the same time,” said John Walke, director of the NRDC Clean Air program, in a statement. “EPA’s administrator is defying the agency’s own judges, the Clean Air Act, and the course of history that recognizes the urgency in tackling global warming.
“The administrator’s 11th hour action is a transparently cynical attempt to tie the hands of the incoming administration and prevent Clean Air Act regulation of global warming pollution. The ultimate consolation, however, is that today’s EPA offense is so ham-handed, so divorced from the law, that it can and should be reversed by the Obama administration with the stroke of a pen.”
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While I agree with the NRDC that Administrator Johnson’s memorandum “is a transparently cynical attempt to tie the hands of the incoming administration and prevent Clean Air Act regulation of global warming pollution,” I have to respectfully disagree with their conclusion that it is illegal or “divorced from law.”
Legally speaking, the Administrator makes the legally sufficient interpretation that “regulated NSR pollutant” does not include pollutants that only monitored and reported (and not restricted). Likewise, the Administrator is correct in pointing out that as an interpretation of a statute and regulation that the EPA has been given the power to administer, no public comment period is necessary under the Administrative Procedure Act. See, http://taberlaw.wordpress.com for more legal analysis of the memorandum.
That being said, the EPA’s issuing this memorandum before completing its court mandated duty of either regulating greenhouse gases or stating that they will have no impact on public health, is wrong. It is a blatant attempt (albeit legal) to allow several power plants to get permits without CO2 limits before CO2 limits become federally mandated.
EPA has yet to make an endangerment finding on CO2. The period for comments on it’s Advance Notice of Proposed Rulemaking (ANPR) ended November 28. A decision (yes or no on endangerment) won’t be made until next year. EPA doesn’t regulate substances for which an endangerment finding has not been made. This is long-standing and sound EPA policy. Without such a policy EPA would regulate everything. The EPA Appeals Board panel decision last month, which ordered the Denver office of EPA to consider whether to limit CO2 emissions at a Utah coal-fired power plant, violated this sound policy, hence Johnson’s memo.
Actually, it is inaccurate to say that the EAB’s decision in Deseret Power Electric Cooperative “violated this sound policy.” What the memo said, correctly, was that, in fact, there was no clear interpretation of what constitutes a “regulated NSR pollutant” within the meaning of the Clean Air Act and NSR regulations. The memorandum does not overrule the decision in Deseret Power. Instead, it makes it moot since it supplies the “interpretation” that the EAB in Deseret Power claimed was lacking.
If the panel had followed long-standing EPA policy (pollutants for which an endangerment finding has not been made cannot be regulated) then it would not have been necessary for Johnson to issue the memo, thus the panel did violate the policy by remanding the case to the Denver office.
The issue before the EAB was whether CO2 is a “regulated NSR pollutant” such that a permit could be issued limiting emissions of CO2. The endangerment determination of CO2 and other greenhouse gases did not play a role in the Deseret decision because those issues were not before the EAB.
The permit being sought by Deseret was for NSR pollutants. Regardless of the endangerment finding, a NSR permit may include limits on all “regulated NSR pollutants.” Therefore, the EAB did not violate any EPA policy by remanding Deseret’s permit back to the Region.
No one could seriously contend that simply because EPA has authority to monitor CO2 emissions that it also has authority to limit emissions, yet that is what the panel remanded the case to the Denver office to consider. Contrary to the panel’s decision, EPA policy (emissions cannot be limited until and unless an endangerment finding is made) was clear, long-standing, common sense policy which everyone but the errant panel recognized. Had the panel followed policy it would not have been necessary for Johnson to restate it. It seems to me the panel was engaging in activism.
Although it may be your opinion that no one could seriously contend that because EPA has the authority to require monitoring and reporting of pollutants for which no NAAQS has been set (and which are not subject to the standards under section 111 and are not a Class I or II substance), both the EAB and the Administrator found otherwise. As I previously stated, at issue is whether a pollutant, such as CO2, for which monitoring and reporting is required, falls within the category of “regulated NSR pollutants” because of 40 CFR 52.21(b)(50)((iv) (see http://taberlaw.wordpress.com). That section states that “any pollutant that is otherwise subject to regulation under the [Clean Air] Act” is a “regulated NSR pollutant.” http://taberlaw.files.wordpress.com/2008/12/40cfr5221.pdf
Since, as both the EAB and the Administrator found, there was no EPA policy indicating what is considered to be a pollutant “subject to regulation under the Act,” the EAB found that the statute and the regulation were ambiguous. The Administrator’s memo sought to “clear up” the ambiguity. An endangerment determination is not required for a pollutant subject to monitoring and reporting. Moreover, contrary to your statement in your comment, there is no EPA policy, regulation or statute that requires an endangerment determination before a pollutant can be deemed a “regulated NSR pollutant” (and therefore limited in an NSR permit).
You’re putting words in my mouth. I didn’t say, as you assert, that “there is no EPA policy, regulation or statute that requires an endangerment determination before a pollutant can be deemed a “regulated NSR pollutant””, I said that policy prohibited limitation of emissions unless an endangerment finding had been made. I’m tired of beating this dead horse. The panel decision was activist and Johnson reprimanded the panel with his memo. Continue to parse words if you want, it’s your blog, I’m out.
jblethen, just to clarify, while Steve makes some great points, he is not a writer at ForceChange. Thank you both for the lively conversation today. -FC
The fact is that there is no policy prohibiting limitation of emissions unless an endangerment finding has been made, per se. Your broad sweeping statements are inaccurate, that is all that I was trying to point out.