Monday, April 7, 2008

The Games EPA Plays

Regwatch reported on Friday that EPA is delaying greenhouse gas emission regulations by publishing an advance notice of proposed rulemaking:

As Reg•Watch recently reported, EPA staff had drafted preliminary documents describing the dangers associated with greenhouse gas emissions. This so-called endangerment finding would set in motion a series of regulatory actions.  Staff also drafted a regulatory proposal that called for limits on vehicle emissions. In a letter to EPA Administrator Stephen Johnson, Rep. Henry Waxman (D-CA) wrote, "According to EPA staff, the proposal to regulate CO2 emissions from motor vehicles was 'about 300 pages;' and had 'extensive analysis about ... the costs and benefits.' " According to Waxman, Johnson was "personally involved in the decision making." He signed off on the document finding greenhouse gas emissions endanger public welfare and endorsed his staff's proposal for a reduction in vehicle emissions.  Yesterday, Johnson announced his intent to publish an Advanced Notice of Proposed Rulemaking, which will do nothing more than gather comments on the issue of greenhouse gas regulation. Critics are calling the move a stall tactic. Indeed, it appears as though the White House pressured EPA to abandon its draft regulation, despite the diligent efforts of EPA staff. Instead, the Advanced Notice will provide all interested parties an opportunity to rehash arguments which are already well-documented and which EPA fully understands.

Given EPA's track record, the ANPR means that EPA will finalize regulations somewhere between 5-7 years and never, if simply allowed to play its standard games.  Of course, these are not standard games -- but apparently White House inspired games.  And White House involvement gave rise to Waxman's oversight hearing and the lawsuit filed by states and NGOs to require EPA action to comply with Massachusetts v. EPA. 

So, inquiring minds want to know, does a ANPR satisfy the requirement for EPA to act.  Who knows?  Only time (and the Supreme Court) would tell.  However, we'll never know because Congress and a new White House will act long before the courts have a chance to tell us.  Without a doubt Congress in national GHG legislation will attempt to avoid application of the rest of the Clean Air Act to GHGs such as carbon dioxide.  It will be a bit of a delicate exercise though because many other GHGs are already regulated under 112 as hazardous air pollutants or under Title VI as ozone-depleting substances.

The provisions regarding CAA applicability and preemption of state and local law will prove to be some of the most interesting and intricate legal issues in tailoring the GHG emissions cap-and-trade legislation.  This is one reason why some straight-forward command & control regulations might make sense.  For example, ban operation of any new fossil-fuel burning electric generating plant without carbon capture and sequestration or equally effective carbon removal.  That avoids any problem with NSR, NSPS, or MACT.  Then, apply a cap and trade system to accomplish the equivalent of the lead phasedown for existing plants.

http://lawprofessors.typepad.com/environmental_law/2008/04/the-games-epa-p.html

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