The EPA, Supreme Court and Carbon Dioxide

On Monday, June 23, 2014 the Supreme Court issued its opinion in the case Utility Air Regulatory Group v. EPA finding that regulators are not fee to “revise clear statutory terms that turn out not to work in practice.” The practical impact of this decision on current EPA regulations is limited, but the precedent is important.

Back in April 2007 in a decision in Massachusetts v EPA (2007), the Supreme Court had ruled that the Clean Air Act did authorize federal regulations on greenhouse gas emissions, and that the agency was required to issue them for automobiles unless it had a scientific basis for its refusal. That case was brought by several states to force the EPA to determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which endangers public health or welfare, or whether the science is too uncertain to make a reasoned decision.

This decision was followed in December 2009 by EPA finding that “the current and projected concentrations of the six key well-mixed greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations.” These greenhouse gases including carbon dioxide (CO2) were thus pollutants under section 202(a) of the Clean Air Act which deals entirely with mobile sources of pollution.

The EPA then took the next step and went on to address greenhouse gases, specifically CO2, from stationary sources. The problem in regulating CO2 from stationary sources is that the Clean Air Act imposes very specific permitting requirements on stationary sources, that are a “major emitting facility”. The Clean Air Act specifically defines a “major emitting facility” as a stationary source with the potential to emit 250 tons per year of “any air pollutant” (or 100 tons per year for certain types of sources). Facilities seeking to qualify for a permit must, demonstrate that they comply with emissions limitations that reflect the “best available control technology” for “each pollutant subject to regulation under” the Act. In addition, Title V of the Clean Air Act makes it unlawful to operate any “major source,” wherever located, without a permit. A “major source” is a stationary source with the potential to emit 100 tons per year of “any air pollutant.”

The obvious problem is that these thresholds would require virtually any commercial building, school, churches, farm, landfill and some residences to obtain a permit to operate under the Clean Air Act a process that according to the EPA could cost $20,000-$50,000 for each entity. So the EPA attempted to side step this issue by raising the permit triggering limits to 100,000 tons to qualify as a major emitting facility for greenhouse gases and 75,000 tons for a stationary source to require a permit under the law.

The Supreme Court found that the EPA lacked authority to “tailor” the Act’s unambiguous numerical thresholds of 100 or 250 tons per year to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers. This according to the decision would have been an enormous and transformative expansion in EPA’s authority, the ability determine carbon dioxide standards and enforcement without congressional authority. Stating that “Agencies must always give effect to the unambiguously expressed intent of Congress.”

The decision states that “the Clean Air Act neither compels nor permits EPA" to require a stationary source to obtain a “Prevention of Significant Deterioration” (PSD) or Title V permit only on the basis of its potential greenhouse-gas emissions. However, EPA can reasonably interpreted the Clean Air Act to require sources that would need permits based on their emission of conventional pollutants to comply with a “best available control technology” requirement for greenhouse gases.

So, EPA gets to require already regulated stationary sources of pollution to use the “best available control technology” to reduce greenhouse gases and determine the limits. This would cover according to the EPA 83% of the greenhouse gas emission from stationary sources. This decision does not address the recently proposed regulations to create national CO2 emissions standards for new and existing power plants with the goal of reducing CO2 emissions.

Carbon Capture- Will It Save Us?

Last week a three-judge panel of the U.S. Court of Appeals in Washington ruled that the U.S. Environmental Protection Agency, EPA, had “substantial record evidence” that greenhouse gases probably caused the climate to warm over the past several decades, the EPA had concluded that greenhouse gases are pollutants that endanger human health in 2009.  Opponents to that determination had essentially asked the Court to re-weigh the scientific evidence before EPA and reach their own conclusion. However, the three judge panel wrote in the opinion for the case that. “(t)his is not our role.”

 Back in  December 2009,  the EPA officially found that greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations the agency,  and started on the path to regulate carbon dioxide, CO2, after the  "American Clean Energy and Security Act”, also known as the Waxman-Markley energy bill was defeated in the Senate. After collecting CO2 emission data from industry the EPA “found” in 2012 that the largest carbon dioxide generators are the largest stationary combustion sources. It was no surprise that the largest (coal) electrical generation and industrial plants in the nation- big furnaces generate more CO2. For the past decade electrical generation has accounted for approximately 40% of the carbon dioxide emissions in the United States and worldwide. At the end of March 2012, the EPA proposed the first Clean Air Act standard for CO2 rule targeted at power plants.  The agency plans to phase in industrial facilities covered by the carbon rules through 2016. Under the new rule, new power plants will have to emit no more than 1,000 tons of CO2 per megawatt-hour of energy produced. That standard effectively changes the fuel of choice for all future power capacity additions to natural gas, nuclear, or the renewable category (with government subsidies). All existing plants and currently permitted and built in the next 12 months will be grandfathered and exempt from this new rule for now.

Coal electrical generation plants currently produce about 1,800 pounds of carbon dioxide per megawatt-hour of electricity. EPA says the CO2 rule that requires new plants to produce no more than 1,000 pounds of CO2 per megawatt-hour as creating “a path forward for new technologies to be deployed at future facilities that will allow companies to burn coal, while emitting less carbon pollution.” The EPA in their new regulations and Department of Energy, DOE, in their research grants are pushing forward on the development of Carbon Capture. In June the International Energy Agency, IEA, released its preliminary 2011 estimates of world CO2 emissions from fossil fuel combustion. World CO2 emissions rose by 1 billion metric tons, a 3.2 % increase over last year to reach 31.6 billion metric tons. The worldwide level of CO2 is now higher than the worst-case scenario outlined by climate experts just five years ago and within 1 billion metric tons of the IEA point of no return. (That is the point where mankind cannot hold global warming at 2 degrees Celsius.)

 

 In 2011 the top four world generators of CO2 emission from fossil fuels were (from highest to lowest) China, the United States, the European Union and India who edged out Russia to take the number four slot. China increased emissions contributed almost three quarters of the global increase, with its emissions rising by 720 million metric tons, or 9.3% to 8.46 billion metric tons of CO2, primarily due to higher coal consumption. India’s emissions rose by 140 million metric tons or 8.7% to 1.75 billion metric tons. Since 2000, China has more than tripled its installed capacity of coal power plants, while India’s capacity has increased by 50%. Neither country has used the most efficient designs and technologies available for those plants and those plants will continue to operate 24/7 for decades to come.

CO2 emissions in the United States, in contrast, fell by 92 million metric tons in 2011, or 1.7% to an estimated 5.32 billion metric tons. The European Union increased their CO2 emissions from fossil fuel by 69 million metric tons to approximately 3.56 billion metric tons. Japan’s CO2 emissions increased by 28 million metric tons, or 2.4% to approximately 1.19 billion metric tons, as a result of a substantial increase in the use of fossil fuels in power generation post-Fukushima tsunami. Russia and Canada reportedly remained fairly stable from the previous year. Nonetheless, the IEA still believes that it is still possible to prevent the earth’s temperature from rising more than 2 degrees Celsius if “timely and significant government policy action is taken, and a range of clean energy technologies are developed and deployed globally.” One of the key technologies according to the IEA is carbon capture.

In 2009 DOE supported eleven projects to conduct site characterization of geological formations for CO2 storage. Carbon capture is really three activities: Gathering or capturing of CO2 from point sources (power plants, industrial plants, and refineries), transporting the captured CO2 to a geological storage site, and injecting the CO2 into the ground for permanent storage and monitoring the site for eternity. Capturing and transporting CO2 from industrial plants is technologically possible but is currently prohibitively expensive, though DOE’s National Energy Technology Laboratory and several universities are exploring ways to bring down the costs or raise the costs of other energy sources.  A significant portion of the CO2 generated in the United States and the world is not generated from large stationary point sources, but from cars, homes, and smaller sites. Only about a quarter of the CO2 generated from fossil fuel combustion annually is generated at large point sources the only possible capture points. Storing even a portion of this amount of CO2 would require capturing the gas at many locations around the country and transporting it to facilities that could inject the CO2 into appropriate subsurface rock formations. According to the researchers efficient underground storage of CO2 requires that it be in the supercritical (liquid) phase to minimize required storage volume.

In order for CO2 to remain in a supercritical phase, the pressure in the storage reservoir must be greater than about 68 atmospheres and at temperatures above 31.1°C. (Sminchak et al., 2001). These conditions require that the CO2 be injected at high pressures, which can only be achieved at depths greater than about 2,600 feet below the earth’s surface. The supercritical CO2 will be injected into the geologic formations that are overlain by appropriate sealing formations and geologic traps that will prevent the CO2 from escaping as the CO2 injection well remains in continuous operation for years or decades. The volumes of supercritical CO2 envisioned for carbon capture are huge. A recent U.S. National Research Council report suggests that carbon capture and deep earth sequestering could potentially induce earthquakes because significant volumes of fluids are injected underground over long periods of time. However, insufficient data exists at this time to evaluate this risk. An IPCC Special Report on CO2 capture and storage suggests that between 73 and 183 million metric tons of CO2 could be captured and stored worldwide from both coal and natural gas energy plants each year (Metz, 2005).  The IPCC envision that carbon capture and well injection would take place at a number of locations, ideally places near to power plants that produce CO2 to avoid long transportation distances under pressure.

American Electric Power, AEP, participated in three DOE funded projects to advance CCS technologies. All were conducted at the Mountaineer Plant in New Haven, West Virginia (from which some of my power is supplied within the PMJ Interconnection). AEP planned to replace its pilot demonstration CO2 capture plant with a larger $668 million Carbon Capture and Storage facility, which would have buried more than 1 million metric tons of CO₂ a year, splitting construction costs evenly with the DOE, but failed to obtain the consumer rate increases necessary to fund the experiment. The project has been discontinued. In 2010 there were almost 1,400 coal fired electrical generating units in the United States if each were to be converted to carbon capture operation the total cost would be almost a trillion dollars in construction costs (assuming no cost over runs) and capture 1.4 billion metric tons of CO2 per year. This would represent 26% of the net annual CO2 emissions of the United States and increase average electrical rates 25% nationally for just building the units. Electrical rates would have to increase more if there were any annual operating costs of the Carbon Capture unit. Actual rate increases would be regional.  

The AEP projects were demonstrations of Alstom’s Chilled Ammonia Process for Post-Combustion CO2 Capture. The process uses ammonium carbonate to absorb CO2 and create ammonium bicarbonate. This resulting ammonium bicarbonate is converted back to ammonium carbonate in a regenerator and is reused to repeat the process. The flue gas, cleaned of CO2, but with the tell-tale smell of the ammonia reaction, flows back to the stack and the captured CO2 is sent for storage. Once captured, the CO2 is compressed into a liquid state and is injected 1.5 miles beneath the earth’s surface. Several major pilot projects, in Europe have also been cancelled in the last few years because of doubts over their financial and technical viability. Some are still under consideration for EU and government funding, but the need to rescue the Euro and European Banks has taken the financial resources of the European Union. Ayrshire Power in Scotland, blamed their cancelled plans for a new carbon-capture power station at Hunterston on the recession and anxieties about winning funding from the government and the same reasons were given for the cancellation of the Longannet power station in Fife.

 Globally, only a few, small-scale commercial carbon capture projects are in operation. The oil and gas fields in the North Sea are the site of the world’s first offshore commercial CO2 capture and storage project. Carbon dioxide is captured at a plant located on the offshore natural gas platforms and is stored underground in a sandstone well approximately 2,600 feet below the sea bed. The CO2 tax levied on offshore oil and gas operations by the Norwegian government made the project worthwhile and the drilling rig and available aquifer made it possible. CO2 is removed from the natural gas produced at the Sleipner field in the North Sea and re-injected it into a very porous, permeable sandstone and saline aquifer above the oil and gas reserves. Approximately 1 million metric tons of CO2 have been stored each year since 2000 when the system went into operation. This is just a small fraction of the 31.5 billion metric tons of CO2 released into the atmosphere each year.  It appears as if the United States has passed the point of peak CO2, but the atmosphere of the earth is interconnected and China and India appear to be increasing their CO2 emissions by 860 million metric tons a year. It matters what kind and how efficient a power plant is installed in China or India since they will be sending particulates and CO2 into the atmosphere for decades. Nonetheless, we have no control over the growth in India and China’s coal fired power supply, nor in the abandonment of nuclear power by Germany, Belgium, Switzerland and Japan in the next decade in response to the damage to the nuclear reactors that occurred in the Japanese Fukushima tsunami. 

Lake Lanier, Atlanta’s Water and the New Water Reality

Lake Sidney Lanier Reservoir commonly known as Lake Lanier was created by the U.S. Army Corps of Engineers when they constructed the Buford Dam in 1956. According to Charles Fishman in “The Big Thirst” in the 1950’s when Lake Lanier was created the city of Atlanta did not finance a share of the project believing that the city that typically receives almost 50 inches of rain on average a year would never need the water. Atlanta has grown far beyond the expectations of those city fathers and the downstream states of Alabama and Florida have through legal action sought to limit the quantity of water Georgia can retain for their use above Buford Dam, arguing that Florida and Alabama need an adequate flow of water down the Chattahoochee River for power production and drinking water supply in Alabama and for maintaining adequate fresh water flow to the Apalachicola Bay to keep the salinity balance to maintain the estuary ecology, fishing habitats and breeding grounds in Florida. Georgia has single mindedly sought to protect the ability of Atlanta-area water utilities to withdraw unlimited water from the reservoir to meet the unrelenting water demand of the Atlanta metropolitan area for lifestyle water (gardens and green lawns) and life essential water through litigation rather than through conservation and smart planning. A grassroots effort has been launched by the local governments, water authorities, environmental groups, farm groups, industry and others-in short, the ACF stakeholders themselves, to try to achieve equitable water-sharing solutions among stakeholders that balance economic, ecological and social values, while ensuring sustainability for current and future generations.

In the Washington Metropolitan area where two states and the District of Columbia are dependent on the flows of the Potomac River they have the Interstate Commission on the Potomac River Basin, ICPRB, which was authorized by congress in 1940.  ICPRB allocates and manages water resources of the river through the management of the jointly owned (and financed) Jennings Randolph Reservoir (built in 1981), Potomac River Low Flow Allocation Agreement (1978) and the Water Supply Coordination Agreement in 1982 which designated a section of the ICPRB as responsible for allocating water resources during times of low flow and assists in managing water withdrawals at other times. These steps improved reliability of the water supply and ensured maintenance of in-stream flows to meet minimum aquatic habitat requirements. The task of cooperation may be more difficult for Georgia, Alabama and Florida where the distance creates different views of how much water is available and makes it difficult to see that they are joined in a regional watershed.

Back in Georgia- in 1989 after four years of drought, the U.S. Army Corps of Engineers recommended the 20% of the water used to generate hydroelectric power be diverted for Atlanta’s water supply.  Alabama and Florida objected and filed suit against Georgia and the U.S. Corps of Engineers in 1990, arguing that diverting water to Atlanta was environmentally harmful and economically problematic, and that in any case it required congressional approval because the purpose of the Buford Dam was not to supply water to Atlanta. Thought Atlanta has an average annual rainfall of almost 50 inches a year it varies tremendously in 2007 rainfall was less than 32 inches and in 2009 it was over 69 inches.

Drought has always occurred in Georgia. Five times in the past 90 years has Georgia had multi-year droughts that were called “Droughts of the Century.” An analysis of rainfall in Georgia by the U.S. Geological Survey found that  normal and above-average rainfall years occurred or 43% of the time in the past quarter century and drought and severe drought years occurred 57% of the time. If the weather patterns change the problem could be exacerbated, but what has really changed in Georgia to make the problem acute is the population of Atlanta metropolitan area has grown from about 2 million in 1970 to 5.5 million in 2010 without giving any thought to water resources which have not increased and that unrelenting growth impacted water infiltration and hydrology.  While on average there may still be adequate water to sustain the region.  It is clear that Georgia and Atlanta need to be proactive and plan for regular prolonged drought occurring each decade. Georgia has not been at all proactive in protecting the hydrology and water infiltration and regulating consumption of water in the Atlanta metropolitan area, preferring instead litigation in order to obtain more water from Lake Lanier. Georgia has encouraged unsustainable water usage through largely unregulated growth of population, industry and agriculture without any consideration given to historic drought experience and ever increasing demand for water.

Back in 2009 (a year that saw more than 69 inches of rain in Atlanta) as part of the never ending litigation between Georgia, Florida and Alabama Federal District Judge Paul Magnuson ruled that Georgia either had to reach an agreement with her neighbors by July 2012, or return to 1970s water withdrawal levels. Instead of working towards an agreement, Georgia once more chose litigation and the Eleventh Circuit Court of Appeals found that the 1950s legislation approving the construction of the Buford Dam, (which, in turn, created Lake Lanier), anticipated that the metro-Atlanta area would need greater water withdrawal from the lake over time. The Eleventh Circuit Court overruled Magnuson’s 2012 water-sharing deadline. The Eleventh Circuit Court of Appeals sent the case to the Army Corps of Engineers, which controls Buford Dam, telling the group to review Georgia’s water needs against the environmental impact, as well as Florida and Alabama’s water demands.

Alabama and Florida appealed to the U.S. Supreme Court,who declined to hear the case on Monday letting the decision of the EleventhCircuit Court stand. Nonetheless, none of these decisions will create water in Lake Lanier or increase water resources enough to fully supply all needs during a prolonged drought now or a shorter one as demand for water continues to grow. Lake Lanier must be shared and the demand for water during droughts has exceeded the resources available. No matter the outcome of the case Georgia will have to take responsibility for managing its water resources. “More reservoirs” is not a rational response to drought, due to several factors, including the inevitable and large-scale evaporation issue and the cost of construction. Drought is not only part of our lives, but an increasingly, a recurring part of our lives due to the impact of impervious ground cover and increased demand have had on the storage capacity of the watershed. Water usage must be rationalized to the complete hydrological cycle and reliance on water conservation and reuse to stretch existing supplies for use during drought. Finally, litigation does not increase water supplies. Lives, livelihoods, food supply and cost, and life styles are dependent on water as a community, region and nation we need to understand that. 

The Supreme Court, the EPA and Wetlands

In 2005 Mike and Chantell Sackett purchased less than an acre of land to build a home near to but not adjoining a lake. The lake front homes had already been built. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face $37,500 in fines per day for violation of the Clean Water Act and undisclosed to the Sacketts, an additional $37,500 per day for violating the compliance order. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.
In addition under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The Army Corp of Engineers insisted the site must be restored to its previous condition to apply for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself, and so the Sacketts found themselves in a Catch 22.

On Wednesday, March 21, 2012 the U.S. Supreme Court unanimously ruled that the Sacketts may seek pre-enforcement judicial review of ACOs and that their inability to seek pre-enforcement judicial review of the ACO violated their rights under the Due Process Clause of the U.S. Constitution. The EPA had maintained that the ability to issue compliance orders with huge financial penalties without the ability to seek recourse was an effective means to obtain compliance. However, the Supreme Court disagreed. The effective scope of the federal regulations and power were expanded by the 2011 Guidance to include any conceivable naturally occurring water.
The Clean Water Act (CWA) of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have continually expanded the definition of “navigable waters of the United States” until it is now defined by the US EPA and the Army Corps of Engineers as:
Traditional navigable waters
Interstate waters
Tributaries to navigable waters and interstate waters
Seasonal tributaries, steams or creeks
Wetlands adjacent to any of the above
And last year the agency added the “other” category that seems to include everything but swimming pools, fountains, irrigation ditches and stock watering systems. This Supreme Court ruling did not in any way narrow this interpretation of the reach of the Clean Water Act.

The National Cattlemen’s Beef Association (NCBA), the American Petroleum Institute and the Public Lands Council (PLC) filed amicus (friend of the court) briefs to the U.S. Supreme Court in the Sackett case because according to NCBA Deputy Environmental Counsel Ashley Lyon, this case could have far-reaching impacts on farmers and ranchers and all private landowners. Few of us can afford the legal resources to address an EPA enforcement action, or afford to restore properties to apply for a Clean Water Act permit if our property is deemed to be subject to the Clean Water Act under the guidance. The guidance is open to inconsistent interpretation and could be used unfairly as it was in this case. Now it is possible to obtain a decision that land is not subject to Clean Water Act before an ACO or enforcement action by the EPA. Though there are still no objective standards to determine which waters fall under the act.
There needs to be a consistency of standards in making a wetland determination. The degree of latitude that exits is unacceptable and results in inconsistent determinations and a Kafkaesque regulatory process. That is unacceptable in America. There should be standards like distance, hydrologic connection, and flow connection, size of watershed and storm impact that can be measured and considered in a consistent and quantified way so that a determination could be easily made and reviewed. The EPA Guidance has divorced the law from fact and abused their power potentially putting ordinary home owners at the mercy of EPA employees. It is time for congress to clarify the scope and jurisdiction of the Clean Water Act.

The Supreme Court and Carbon Dioxide

On Monday June 20th 2011 the Supreme Court unanimously (8-0 with Justice Sotomayor recused) rejected a lawsuit that had sought to force major electric utilities to reduce their greenhouse gas emissions without waiting for federal regulators to act. The case was originally filed in July of 2004 when eight states, California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin and New York City filed the suit in Federal Court. Later New Jersey and Wisconsin dropped out. The six remaining states were joined by several Land Trusts and legal foundations dedicated to litigating their way to their envisioned better future. The suit was filed against by AEP, Xcel Energy Inc., Duke Energy Corp., Southern Co. and the Tennessee Valley Authority who were ultimately joined in their fight by legal foundations with the opposite or differing world view. http://sanfranciscochronicle.ca.newsmemory.com/?token=0ed6dcbef6c98ce7651489af6ac7e3e6_sbward116@att.net

The states claimed that the utilities contribute to global warming by pumping 650 million tons of carbon dioxide into the atmosphere each year, representing about 25% of emissions from U.S. power plants and 10 % of emissions from all U.S. sources. The suit sought to have the courts force cuts in emissions from these plants. http://www.nytimes.com/2011/06/21/science/earth/21warming.html

The utilities had questioned the states legal right, or (in legal speak) standing, to sue because they couldn’t show that they were harmed by anything the utilities did or that they would benefit from a ruling against the power companies. On the standing issue the court was split 4-4 with Justice Sotomayor recused (she had heard the case on appeal in New York) so the court made no ruling. It is truly difficult to see how the plaintiffs could have shown harm from the utilities or benefit from the reduction of emissions even if the utilities shut all their plants down. First, the states would have had to demonstrate global warming is occurring and is caused by the utilities operations and then demonstrated how the states were harmed by global warming as well as demonstrating how the states would benefit from a reduction in carbon dioxide released by the plants. Nonetheless, the court did not rule on standing. The court should stick to questions of law and leave interpretation of science and scientific speculation to agencies.

In the opinion written by Justice Ruth Bader Ginsburg, the court held that the states and other plaintiffs can’t use federal public-nuisance law to seek court-imposed limits on carbon dioxide emissions. Federal common law is displaced and no nuisance claim is within the powers of the court to decide because Congress authorized EPA to regulate greenhouse gas emissions under the federal Clean Air Act (CAA). In a previous Supreme court decision in Massachusetts v EPA (2007), the Supreme Court had ruled that the Clean Air Act did authorize federal regulations on greenhouse gas emissions, and that the agency was required to issue them unless it had a scientific basis for its refusal.

Justice Ginsburg said the plaintiffs were making their case in the wrong forum, Clean Air Act authority precludes federal common law even when the agency has not exercised its statutory authority. Justice Ginsburg emphasized EPA’s plans to regulate utility greenhouse gas emissions under Section 111 of the Clean Air Act, which governs establishment of New Source Performance Standards (NSPS).

The decision noted that the Clean Air Act Section 111(d) confers authority to the EPA to set new NSPS for existing sources as well as new sources. However, EPA has infrequently used its authority under Section 111(d). Though it appears that EPA intends to regulate greenhouse gases under the Clean Air Act, EPA does have another option that it has used more frequently in the past. EPA can choose to regulate greenhouse gases and carbon dioxide under the National Ambient Air Quality Standards, NAAQS, where costs of the regulation cannot be considered. Under Section 111(d) of the Clean Air Act costs of the regulation must be considered.

When EPA regulates using the NAAQS provisions the result is more stringent regulations because costs cannot be considered under NAAQS. However, Justice Ginsburg seemed to be identifying the Clean Air Act as the source of the authority to regulate carbon dioxide in her decision. The current science, political and economic environment is one where costs must be considered. The science of climate is still beyond our full understanding and methods of regulation as well as their costs must be considered if our nation is to continue to maintain anything close to our standard of living and the financial ability to respond to natural disasters, severe weather and changes in climate. We are poorer than we once were and no other nation will race to our assistance.