December 2013

Over at Master Resource, I debunk the myth that EPA’s proposed Carbon Pollution Standard is no different than the agency’s sulfur dioxide mandates for new coal-fired power plants in the 1970s. This false analogy, which is being peddled by high ranking EPA officials and influential Members of Congress, is based on the mistaken assertion that sulfur “scrubber” technology then was similar in development to carbon capture and sequestration now. In fact, there were two sulfur dioxide NSPSs in the 1970s. For the first, in 1971, “wet” scrubbers were deemed “adequately demonstrated.” For the second, in 1979, “dry” scrubbers were deemed NOT to be “adequately demonstrated.” To see how scrubber technology in the 1970s actually stacks up against CCS technology, see the chart below. Read the part 1 of the post here. In part 2 of the post, I demonstrate how proponents of the Carbon Pollution Standard undercut their legal case when they make the inapt CCS-scrubber comparison.

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Post image for EPA Permitting of Greenhouse Gases: What Does Legislative History Reveal about Congressional Intent?

Next week, petitioners’ merit briefs are due in Utility Air Regulatory Group v. EPA, the first Supreme Court case to examine the legality of an EPA rule addressing greenhouse gases.

The Court is limiting its review to one question: “Whether EPA permissibly determined that greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” In other words, the Court will review the agency’s April 2010 Timing Rule.

According to the Timing Rule, “major” greenhouse gas emitters became subject to the New Source Review (NSR) preconstruction and Title V operating permit programs on the day the EPA’s greenhouse gas Tailpipe Rule took effect (January 2, 2011). To obtain an NSR preconstruction permit, a covered source must commit to meet case-specific emission limitations known as “best available control technology” (BACT).

What light does legislative history shed on the question before the Court? After reviewing 20 years of legislation containing the terms “greenhouse gas” and “best available control technology,” I conclude that neither Congress as a whole, nor the House or Senate separately, nor any congressional committee intended for the EPA to regulate greenhouse gases through the NSR and Title V programs.

Thomas, the Library of Congress search engine, identifies 692 bills containing the term “greenhouse gas” during the 101st through the 111th Congresses. Only one bill, the Safe Climate Act, introduced in both the 109th and 110th Congresses, arguably authorizes (but does not require) the EPA to apply NSR to greenhouse gases.

Although the Safe Climate Act boasted 155 co-sponsors in the 110th Congress, there were no hearings, committee votes, or floor debates on the bill. In the 111th Congress, the bill’s chief sponsor, Rep. Henry Waxman (D-Calif.), appears to have had a change of heart. The legislation he co-sponsored with Rep. Ed Markey (D-Mass.), the American Clean Energy and Security Act (H.R. 2454) — the only cap-and-trade bill ever to pass in either chamber of Congress — specifically prohibits the application of NSR and Title V to any source based solely on its greenhouse gas emissions.

Thomas also identifies 55 bills introduced during the 101st through 111th Congresses containing the term “best available control technology.” Of those, only one bill introduced (twice) in the 101st Congress and another bill introduced in 110th Congress appear to contemplate some application of NSR and BACT to CO2.

In the 101st Congress, S.676/S.333, the Global Environmental Protection Act of 1989, introduced separately by Senators Max Baucus (D-Mont.) and Patrick Leahy (D.-Vt.), would require the EPA to establish “best available residential technology” standards for CO2 emissions from household furnaces, water heaters, and air conditioners. But here the Senators merely borrow the terminology of NSR rather than actually propose to subject households to NSR permitting. The bills would simply require the EPA to promulgate the functional equivalent of energy-efficiency standards for the equipment in question.

Regardless, although elements of S.676/S.333 were incorporated in S.1630, the Senate version of the 1990 Clean Air Act Amendments, the proposed “best available residential technology standards” for CO2 did not make the cut.

In the 110th Congress, Senator Lamar Alexander (R-Tenn.) introduced S.1168, the Clean Air/Climate Change Act of 2007. Among other provisions, the bill would require new coal power plants to meet a new source performance standard of 1,100 lbs. CO2 per megawatt hour. Since this standard can only be met through carbon capture and sequestration (CCS), the bill would also void the existing BACT standard for coal power plants based on the performance of “conventional pulverized” coal facilities. There is no indication in the bill that BACT for CO2 pertains to stationary sources in general. Rather, BACT for CO2 would apparently be limited to NSPS-regulated new coal power plants equipped with CCS. In any event, the bill attracted only one co-sponsor, was not the subject of hearings or other committee action, and was not debated on the Senate floor.

Additional details of the legislative history follow. [click to continue…]

Last week the Office of Management and Budget Office of Information and Regulatory Affairs published the Fall 2013 Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions, a twice-yearly summary of regulatory priorities as determined by each executive agency.

EPA’s Fall 2013 Statement of Priorities is notable for what makes the list, but especially so for what is left off it. The agency’s priorities are:

  • making a visible difference in communities across the country;
  • addressing climate change and improving air quality;
  • taking action on toxics and chemical safety;
  • protecting water: a precious, limited resource;
  • launching a new era of state, tribal and local partnership; and
  • working toward a sustainable future.

The first priority—“making a visible difference in communities across the country”—sounds scary to me. I’d rather not encounter EPA meddlers like Walter Peck. Keep the green police out of my neighborhood.

bwpEPA’s second priority—“addressing climate change and improving air quality”—is misleading, because the agency itself concedes that its climate change regulations won’t engender a discernible difference,** due to the fact that the preponderance of present and future emissions originate in other countries where EPA has no authority.

The third priority—“taking action on toxics and chemical safety”—also is cause for suspicion, given that EPA’s foremost action on toxics to date, the 2012 Mercury and Air Toxics Standard, was an absurd, politically motivated regulation that cost $10 billion/year, in order to protect a supposed population of fisherwomen who consume 200 pounds of self-caught fish, from exclusively the most polluted freshwater bodies, during their pregnancies.

The fourth priority—“protecting water: a precious, limited resource”—is, in fact, a raw power grab.

The fifth priority—“launching a new era of state, tribal and local partnership”—is Orwellian boilerplate, as it imparts the opposite of reality. In fact, this administration’s EPA has seized the States’ rightful priorities under the cooperative federalism scheme of environmental regulation created by Congress.

And the sixth priority—“ working toward a sustainable future”—is empty enviro’ mumbo-jumbo.

So, EPA’s 2013 Statement of Priorities is a mess, establishing goals that range from frightening to pointless. However, the truly noteworthy aspect of the list is what it omits: Namely, an EPA priority along the lines of “doing our job.” As I explain in a recent paper, EPA has a woeful record meeting statutory deadlines for regulatory action, which are the agency’s priorities as dictated by Congress. Since 1993, for example, 98 percent of EPA regulations (196 out of 200) pursuant to three core Clean Air Act programs were promulgated late, by an average of 2,072 days after their respective statutorily defined deadlines.

Rather than abide by the mushy list enumerated in the Unified Agenda, it would be far better if the agency gave priority to effectuating the will of the nation’s elected representatives. That is, it would be ideal if the agency deigned to do its job.

** Consider the following exchange between Rep. Mike Pompeo (R-Kansas) and EPA Administrator Gina McCarthy during a September 18 House Energy and Commerce Committee hearing, in which she concedes that none of EPA’s climate regulations will have a discernible impact on the climate.

[click to continue…]