Comments on: EPA’s Sinister Franken-Regs http://www.globalwarming.org/2011/11/10/epa%e2%80%99s-sinister-franken-regs/ Climate Change News & Analysis Thu, 07 Feb 2013 05:41:58 +0000 hourly 1 http://wordpress.org/?v= By: E. Blaine Rawsonhttp://www.globalwarming.org/2011/11/10/epa%e2%80%99s-sinister-franken-regs/comment-page-1/#comment-65855 E. Blaine Rawson Mon, 14 Nov 2011 17:14:12 +0000 http://www.globalwarming.org/?p=11150#comment-65855 Excellent article. EPA's attempt to use the "Good Neighbor" provision of Section 110 of the Clean Air Act is an obvious, and weak, attempt to avoid the clear mandate in Section 169A, which clearly indicates states are to determine which "Best Available Retrofit Technology" should be installed at sources within the given state. An appellate court upheld Congress' clear delegation of this authority to the states in American Corn Growers Assoc. v. EPA, 291 F.3d 1, 2 (D.C. Cir. 2002), where the court stated Section 169A calls “for states to play the lead role in designing and implementing regional haze programs.” In that case, the court found that “Congress intended the states to decide which sources impair visibility and what BART controls should apply to those sources.” Id. at 21-22.EPA is not only aware of this precedent, but reached a similar conclusion in its Preamble to the current regional haze rules. In that Preamble, EPA stated “how states make BART determinations or how they determine which sources are subject to BART” are some of the issues “where the Act and legislative history indicate that Congress evinced a special concern with insuring that States would be the decision makers.” 70 FR 39104, 39137 (July 6, 2005) (emphasis added).Now, with the weight of case law and its own statements supporting the states' rights to run the regional haze programs, EPA is trying to "sidestep" the whole process by claiming that another section of the Clean Air Act, Section 110, provides EPA a vague and broad power to overrule state "regional haze" decision making. However, it is very telling that while EPA cites Section 110's "Good Neighbor" requirement to not "interfere" with the visibility programs of other states, in each instance EPA has cited this authority it has failed to point out how the offending state is imposing on the visibility program of another state.In short, EPA should allow states to fulfill their role under the Clean Air Act to design and run the regional haze programs. Excellent article. EPA’s attempt to use the “Good Neighbor” provision of Section 110 of the Clean Air Act is an obvious, and weak, attempt to avoid the clear mandate in Section 169A, which clearly indicates states are to determine which “Best Available Retrofit Technology” should be installed at sources within the given state. An appellate court upheld Congress’ clear delegation of this authority to the states in American Corn Growers Assoc. v. EPA, 291 F.3d 1, 2 (D.C. Cir. 2002), where the court stated Section 169A calls “for states to play the lead role in designing and implementing regional haze programs.” In that case, the court found that “Congress intended the states to decide which sources impair visibility and what BART controls should apply to those sources.” Id. at 21-22.

EPA is not only aware of this precedent, but reached a similar conclusion in its Preamble to the current regional haze rules. In that Preamble, EPA stated “how states make BART determinations or how they determine which sources are subject to BART” are some of the issues “where the Act and legislative history indicate that Congress evinced a special concern with insuring that States would be the decision makers.” 70 FR 39104, 39137 (July 6, 2005) (emphasis added).

Now, with the weight of case law and its own statements supporting the states’ rights to run the regional haze programs, EPA is trying to “sidestep” the whole process by claiming that another section of the Clean Air Act, Section 110, provides EPA a vague and broad power to overrule state “regional haze” decision making. However, it is very telling that while EPA cites Section 110′s “Good Neighbor” requirement to not “interfere” with the visibility programs of other states, in each instance EPA has cited this authority it has failed to point out how the offending state is imposing on the visibility program of another state.

In short, EPA should allow states to fulfill their role under the Clean Air Act to design and run the regional haze programs.

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