In a much-anticipated and, in some quarters, dreaded move, the U.S. Environmental Protection Agency on Sept. 30 announced it might use the Clean Air Act to regulate greenhouse gases. The same day, Sens. Barbara Boxer (D-Calif.), chair of the Environment and Public Works Committee, and John Kerry (D-Mass.) introduced their version of a global-warming bill.

Largest emitters of carbon dioxide, like powerplants, would be targeted.
Photo: American Electric Power
Largest emitters of carbon dioxide, like powerplants, would be targeted.

Industry sources say they greatly prefer legislation to address global warming rather than a regulation, and the Clean Air Act is the wrong vehicle to regulate carbon-dioxide emissions. They claim that using the Clean Air Act to regulate greenhouse-gas emissions could lead to construction delays and litigation.

“They’re trying to put a square peg into a round hole,” says Bryan Brendle, director of energy and resource policy at the National Association of Manufacturers. “This sort of maneuver will be very vulnerable in court and simply won’t stand.”

EPA plans to issue the proposal in an upcoming issue of the Federal Register in response to a 2007 Supreme Court decision, Mass. v. EPA. That ruling left the door open to potential regulation of greenhouse gases under the Clean Air Act. EPA Administrator Lisa Jackson has said she prefers Congress enact legislation that addresses global warming, but in the absence of congressional action, the agency would issue regulations.

“There’s a lot of uncertainty,” says Dan Riedinger, spokesman for the Edison Electric Institute. “But I think EPA Administrator Jackson has made it clear the agency will move swiftly toward regulation of greenhouse gases under the Clean Air Act in keeping with the administration’s pledge to do so.”

Progress in advancing a bill in the Senate has been sluggish. The House of Representatives passed a global-warming bill last spring, but the Senate has failed to move forward with a comparable bill until now. Last month, Senate Majority Leader Harry Reid (D-Nev.) said other priorities, such as health-care reform, might delay action on climate change until 2010.

Barbara Boxer
Says she will hold hearings in October on the bill.

Under the EPA proposal, facilities emitting more than 25,000 tons of greenhouse gases annually would be required to obtain permits that demonstrate they are using best practices and technologies to minimize greenhouse-gas emissions. Powerplants, refineries, industrial and manufacturing plants and other large emitters would have to install greenhouse-gas reduction controls if modified or expanded to increase emissions by more than 10,000 tons.

EPA estimates that under the proposed emission thresholds, 400 new sources and modifications to existing sources would be subject to review each year. Approximately 14,000 large sources would need to obtain operating permits for greenhouse-gas emissions. Small businesses would be exempted from the rule. “This is a common-sense rule that is carefully tailored to apply to only the largest sources, those from sectors responsible for nearly 70% of U.S. greenhouse-gas emissions sources,” EPA’s Jackson says.

John Kerry
“This is not going to be easy.”

Environmental groups say they are supportive of EPA’s effort. Frank O’Donnell, president of Clean Air Watch, a Washington, D.C.-area advocacy group, says, “My own sense is that EPA is trying to act in a reasonable and common-sense way in trying not to place too great a burden on either any government agency or on private, small businesses.”

Karen Lapsevic, director of tax, fiscal affairs and infrastructure finance for the Associated General Contractors of America, says if carbon dioxide is determined to be a pollutant under the Clean Air Act, EPA would be required to create air-quality standards for it. That move would push “pretty much the whole country…out of attainment for CO2,” she says. “That has implications for transportation projects moving forward,” as well as new powerplants, refineries and other large facilities, she says.

Edison Electric’s Riedinger says, “It’s far too early to tell what the impact on utilities will be and what we would be required to do” to comply. “We will be regulated unless Congress gets to the finish line first,” he adds.

Sen. Lisa Murkowski (R-Alaska) on Sept. 24 attempted to add an amendment to the fiscal 2010 Interior and Environment spending bill that would have delayed action on the EPA proposal for one year. That effort failed, but NAM’s Brendle says she may try to find another vehicle.

The Senate bill differs from the House-passed bill in that it would reduce greenhouse-gas emissions by 20% of 2005 levels by 2020, compared to the 17% in the House bill, and would not pre-empt EPA from regulating carbon dioxide under the Clean Air Act, as the House bill does. “It’s a solid start,” O’Donnell says.

But the bill faces an uphill battle. “This is not going to be easy,” says Kerry. “And after the last few months, we know what’s coming. People say we can’t afford to act....The truth is our security and our economy will both be strengthened, and we can’t afford not to act.”