EPA Permitting of Greenhouse Gases: A Breathtaking Absence of Congressional Intent

by Marlo Lewis on December 11, 2013

in Blog, Features

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This post updates the analysis I presented last week in EPA Permitting of Greenhouse Gases: What Does Legislative History Reveal about Congressional Intent?

Petitioners’ merit briefs were due on Monday this week in Utility Air Regulatory Group v. EPA, the first Supreme Court case to examine the legality of an EPA regulation addressing greenhouse gases. Amicus briefs on behalf of petitioners are due next week.

The narrow question before the Court is whether the EPA permissibly determined that its May 2010 greenhouse gas Tailpipe Rule automatically triggered Clean Air Act permitting requirements for major stationary sources of greenhouse gases. In other words, the Court is reviewing the agency’s Timing Rule.

According to the Timing Rule, anyone seeking to build or modify a major source of greenhouse gas emissions must first obtain a “prevention of significant deterioration” (PSD) preconstruction permit. An applicant must conduct a multi-step analysis to determine the proposed facility or modification’s “best available control technology” (BACT) requirements. PSD permitting and BACT determinations are components of the Clean Air Act’s New Source Review (NSR) program.

As detailed in my post last week, I found a BREATHTAKING ABSENCE OF CONGRESSIONAL INTENT for the regulatory path prescribed by the EPA’s Timing Rule:

  • During the 101st through the 111th Congress, senators and congressmen introduced 692 bills containing the term “greenhouse gas” and 55 bills containing the term “best available control technology.”
  • Of those, only the SAFE Climate Act, introduced in the 109th and 110th Congresses, appears to contemplate a broad application of NSR/BACT to greenhouse gases (the terms NSR and BACT don’t occur in the statute). And then only at the EPA’s discretion, not, as per the Timing Rule, by automatic operation of the statute.
  • More importantly, although the SAFE Climate Act garnered 155 co-sponsors in the 110th Congress, the bill never got beyond the introduction stage of the legislative process. No committee approved it, and the House did not vote on it.
  • The bill’s chief sponsor, Rep. Henry Waxman (D-Calif.), did not reintroduce the SAFE Climate Act in the 111th Congress. Instead, he co-sponsored the American Clean Energy and Security Act (ACESA), the only cap-and-trade bill ever to pass in a chamber of Congress. ACESA specifically prohibited the application of NSR to stationary sources based on their greenhouse gas emissions.

In short, there is not a shred of evidence in the legislative history that Congress as a whole, the House or Senate separately, or any congressional committee ever intended for the EPA to broadly apply NSR/BACT provisions to greenhouse gases.

Just to make sure nothing fell through the cracks, I today did a search of all legislation introduced during the 101st through the 111th Congresses containing the term “prevention of significant deterioration” (PSD) — the specific type of NSR permit that is the focus of the Timing Rule.

Of 35 bills introduced containing the term, only one was a climate-related bill (S.1168 — the Clean Air/Climate Change Act of 2007). Significantly, it does not propose to apply PSD permitting to greenhouse gases.

The table below summarizes the results.

PSD Table

The combined result of these analyses is stunning. Of 692 bills containing the term “greenhouse gas,” only S.1168 also contains the term “prevention of significant deterioration.” And that bill’s sole mention of the term is in a finding that ”many owners of electric generating units have failed . . . to retire the units, as anticipated by Congress in the new source review provisions of the prevention of significant deterioration and nonattainment programs of the Clean  Air  Act  (42 U.S.C. 7401 et seq.).” In S.1168, “prevention of significant deterioration” is separate from and unrelated to the bill’s greenhouse gas regulatory provisions.

Clearly, the EPA’s broad application of NSR permitting to greenhouse gases exceeds any discernible congressional intent. The Timing Rule should be overturned.

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