March 30, 2012 00:38
Tuesday EPA issued its proposed rule (see related post) concerning new source performance standards for greenhouse gas emissions for electric power plants. This all started when EPA refused to address greenhouse gas emissions coming out of cars. Cars to power plants. Some may be wondering how the camel got into this tent.
The story begins of course with Massachusetts v. EPA, 549 U.S. 497 (2007), where the Supreme Court held that greenhouse gases emitted in automobile exhaust were "air pollutants" within the meaning of the Clean Air Act. This meant that EPA had to assess whether they caused or contributed to "air pollution which may reasonably be anticipated to endanger public health." 42 U.S.C. § 7521(a)(1).
That assessment was completed in December 2009 and EPA concluded in the "Endangerment Finding" that "that six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations." 74 Fed. Reg. 66,496 (Dec. 15, 2009). The Endangerment Finding did not impose any requirements, but it set the stage for regulation. In September 2009 EPA and the US Department of Transportation issued proposed rules to establish greenhouse gas emission standards for certain motor vehicles. The final rule was published on May 7, 2010 and went into effect on January 2, 2011. 75 Fed. Reg. 25324 (May 7, 2010). The camel's nose was in the tent.
And with that, EPA now had the prerequisite to set greenhouse gas emissions limits elsewhere. At least that is EPA's position. In a nutshell, stationary sources that emit 250 tons per year of "pollutants" are subject to the Prevention of Significant Deterioration (PSD) program. One element of the PSD program is that Best Available Control Technology (BACT) analysis is required for "each pollutant subject to regulation" under the Clean Air Act. 42 U.S.C. 7475(a)(4). When the motor vehicle greenhouse gas regulation kicked in on January 2, 2011, greenhouse gases were subject to regulation, and therefore electric utilities emitting greenhouse gases were required to conduct a BACT analysis. All of the camel was in the tent.
All of these regulations (and others) were challenged. Oral argument in those cases was heard before the D.C. Circuit at the end of February. The regulated community awaits; who knows what the camel is thinking.