Despite what you may have heard about the United States’ continuing failure to address the dangers of global climate change, on January 2, 2011 greenhouse gases (GHGs) will, for the first time ever, be subject to regulation by EPA under the Clean Air Act (CAA). The new “Tailoring” rule will require the largest emitters of GHGs, such as refineries, power plants and cement production facilities, to limit their GHG emissions if they trigger the new regulations by building new emissions sources or making major modifications to existing sources.
While this new GHG permitting program is not the result of much needed Congressional action, and it is far from a silver bullet, it does represent a very significant first step in finally addressing global warming pollution from major sources at the federal level.
The new GHG paradigm is rooted in a 2003 decision by President Bush’s EPA, in which they refused to address GHG pollution from motor vehicles on the grounds that GHGs are not pollutants. In 2007 the United States Supreme Court disagreed with the Bush EPA and found that carbon dioxide and other GHGs are pollutants under the CAA. In the wake of that ruling, EPA undertook a scientific review and determined that GHGs “cause or contribute” to global climate change and “endanger” human health and welfare as a result. Based on these findings EPA promulgated rules to limit GHG emissions from automobiles.
The CAA requires that when a pollutant is regulated under any provision of the Act—for example, when GHG is regulated from automobiles—that the pollutant must also be regulated under the New Source Review Prevention of Significant Deterioration (PSD) program. PSD applicability means that permitting authorities will set enforceable numeric limits on GHG emissions from many polluters. The PSD program, however, is a sweeping program that applies to stationary sources and could conceivably cover emitters of GHGs including small farms, hospitals, restaurants and shopping centers. President Obama’s EPA saw that such a broad regulation would be unworkable and therefore adopted a “Tailoring Rule” so that the new PSD requirements would apply only the very largest GHG emitters – power plants and the like.
The new GHG permitting regime will initially apply only to new sources with very significant GHG emissions and even then, only if the source must also undergo PSD review for a pollutant other than CO2 or another GHG. By next summer the permitting requirements will apply to major new sources of GHGs and sources with modifications that significantly increased GHG emissions. Over the next year EPA will consider how to expand GHG permitting in the future.
While these are fairly sizable limits on GHG regulation, the tailored approach will actually cover 70% of national GHG emissions from stationary sources.
The new paradigm will limit GHGs primarily through the use of Best Available Control Technology (BACT). When a GHG source triggers the permitting requirements, the permitting authority (typically a state agency) will have to establish an emissions limit based on the reductions that a facility could achieve if they installed the best pollution reduction technology. The permitting authority will arrive at these BACT limits through a case-by-case analysis, meaning that each new permit will be evaluated individually. Unfortunately, the case-by-case approach benefits polluters by allowing them to lobby for weaker limits. On the other hand, when a draft permit is complete, the public will also have the chance to weigh in and suggest stricter BACT limits.
Despite some shortcomings, GHG permitting, of course, has a number of benefits. The most obvious benefit is that it will ultimately help to reduce GHG emissions. Additionally, for the first time, there will be a legally mandated opportunity for citizens to get involved by commenting on GHG permits and challenging GHG emissions because the CAA permitting program creates a pathway for public input. Finally, the incorporation of GHGs into the CAA is a significant symbolic victory demonstrating that the United States can still respond to pressing environmental issues.
The new GHG regulatory framework is only a very modest first step in the long-delayed effort to respond to global climate change and it has come about through complicated legal and bureaucratic channels, not through the political will of enlightened statesmen. While the new rules are an important first step to reducing the massive dumping of GHGs into our atmosphere, a more comprehensive, lasting and impactful plan has to come from Congress and from international cooperation. Nevertheless, the first step is often the hardest. As the regulatory authority continues to broaden and people further understand that the benefits of reducing GHGs far outweigh the speculative burdens, then this first step may not be seen as a trifle, but instead as proof that the United States really can help to slow our changing climate.
For more information on this new permitting rule, please visit our Learn About page.