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.
Showing posts with label the Supreme Court. Show all posts
Showing posts with label the Supreme Court. Show all posts
Thursday, June 26, 2014
Monday, October 3, 2011
EPA Inspector General Questions Process Not Conclusions
Last Wednesday the Office of Inspector General (OIG) of the US EPA issued a report on the procedure EPA used to make the Carbon Dioxide Endangerment Finding. The review by the OIG was requested by Senator James Inhofe of Oklahoma, a republican member of the Senate Environment and Public Works committee. The OIG has found that the EPA had not followed their established policy and procedures in the development of the endangerment finding for carbon dioxide, including the processes for ensuring information quality. EPA has disagreed with the conclusions and did not agree to take any corrective actions in response to the OIG report. The strength of our system of government is the checks and balances built into the system. The procedures must be followed to maintain the integrity of our system of government, even if the conclusions seem obvious.
Back in April 2007, in a suit filed by Massachusetts against the US EPA the Supreme Court found that greenhouse gases are air pollutants under the Clean Air Act. The case was brought to force the US 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.
Two years later in April 2009, the EPA Administrator signed a proposed endangerment and a cause or contribute findings for greenhouse gases under the Clean Air Act. EPA held a 60-day public comment period, which ended June 23, 2009. If you will recall at the end of the comment period Alan Carlin and John Davidson of the US EPA’s National Center for Environmental Economics detailed their concerns about the science underpinning the agency's "endangerment finding" for carbon dioxide. The two said the US EPA accepted findings reached by outside groups, including the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program, "without a careful and critical examination of their own conclusions and documentation." The EPA dismissed these concerns and barred the two from working in this area in the future. More importantly, the US EPA is required to make its own evaluation of the underlying science not depend on the findings of others for its Endangerment Determination and must that greenhouse gases are harmful to human health. Now the OIG has supported their claims with its finding and the EPA once more has chosen to disagree.
On December 7, 2009, EPA Administrator Jackson signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:
Endangerment Finding:
The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydro fluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.
Cause or Contribute Finding:
The Administrator finds that the combined emissions of these well-mixedgreenhouse gases from new motor vehicles and new motor vehicle enginescontribute to the greenhouse gas pollution which threatens public health andwelfare.
Although the EPA could have delayed until March 2010 the announcement of findings, in picking that time the administration chose to signal the US’s dismissal of any questions raised by the disclosure of emails hack from the University of East Anglia's Climate Research Unit (CRU) a collaborator with the U.N.'s Intergovernmental Panel on Climate Change. The Administration chose the first day of the United Nations global warming conference in Copenhagen as a way to signal full US acceptance of the U.N.'s Intergovernmental Panel on Climate Change determinations and as a demonstration that the U.S. is committed to cut its greenhouse gas emissions either through legislation or regulation.
I close with the press release from the Office of Inspector General (OIG) of the US EPA “We concluded that the technical support document that accompanied EPA’s endangerment finding is a highly influential scientific assessment and thus required a more rigorous EPA peer review than occurred. EPA did not certify whether it complied with OMB’s or its own peer review policies in either the proposed or final endangerment findings as required. While it may be debatable what impact, if any, this had on EPA’s finding, it is clear that EPA did not follow all required steps for a highly influential scientific assessment. We also noted that documentation of events and analyses could be improved.”
Back in April 2007, in a suit filed by Massachusetts against the US EPA the Supreme Court found that greenhouse gases are air pollutants under the Clean Air Act. The case was brought to force the US 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.
Two years later in April 2009, the EPA Administrator signed a proposed endangerment and a cause or contribute findings for greenhouse gases under the Clean Air Act. EPA held a 60-day public comment period, which ended June 23, 2009. If you will recall at the end of the comment period Alan Carlin and John Davidson of the US EPA’s National Center for Environmental Economics detailed their concerns about the science underpinning the agency's "endangerment finding" for carbon dioxide. The two said the US EPA accepted findings reached by outside groups, including the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program, "without a careful and critical examination of their own conclusions and documentation." The EPA dismissed these concerns and barred the two from working in this area in the future. More importantly, the US EPA is required to make its own evaluation of the underlying science not depend on the findings of others for its Endangerment Determination and must that greenhouse gases are harmful to human health. Now the OIG has supported their claims with its finding and the EPA once more has chosen to disagree.
On December 7, 2009, EPA Administrator Jackson signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:
Endangerment Finding:
The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydro fluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.
Cause or Contribute Finding:
The Administrator finds that the combined emissions of these well-mixedgreenhouse gases from new motor vehicles and new motor vehicle enginescontribute to the greenhouse gas pollution which threatens public health andwelfare.
Although the EPA could have delayed until March 2010 the announcement of findings, in picking that time the administration chose to signal the US’s dismissal of any questions raised by the disclosure of emails hack from the University of East Anglia's Climate Research Unit (CRU) a collaborator with the U.N.'s Intergovernmental Panel on Climate Change. The Administration chose the first day of the United Nations global warming conference in Copenhagen as a way to signal full US acceptance of the U.N.'s Intergovernmental Panel on Climate Change determinations and as a demonstration that the U.S. is committed to cut its greenhouse gas emissions either through legislation or regulation.
I close with the press release from the Office of Inspector General (OIG) of the US EPA “We concluded that the technical support document that accompanied EPA’s endangerment finding is a highly influential scientific assessment and thus required a more rigorous EPA peer review than occurred. EPA did not certify whether it complied with OMB’s or its own peer review policies in either the proposed or final endangerment findings as required. While it may be debatable what impact, if any, this had on EPA’s finding, it is clear that EPA did not follow all required steps for a highly influential scientific assessment. We also noted that documentation of events and analyses could be improved.”
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