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Air Quality 12/29/2008 1:29:09 PM EST Marten Law Group: EPA Decision Stirs Pot on Addressing CO2 Emissions Attorney, Marten Law Group In this Emerging Issues Analysis, Dustin Till of Marten Law Group discusses the EPA Environmental Appeal Board's decision in In re Deseret and its implications for the future regulation of carbon dioxide by the Obama Administration. As Mr. Till explains, two options for controlling CO2 emissions are by enacting new legislation, such as the cap-and-trade programs proposed in the Congress, or by using existing law, notably the Clean Air Act.
When he takes office in January, Barack Obama will have at least two clear paths to regulating carbon dioxide emissions to address climate change. The first is through new legislation, such as the cap-and-trade proposals floated in the 110th Congress.[1] The other, quicker path -- but one fraught with its own set of problems -- is to use existing laws, notably the Clean Air Act (CAA). Seizing on existing law, the Sierra Club (Petitioner) recently blocked a permit to construct a coal-fired power plant by arguing successfully to the Environmental Protection Agencys Environmental Appeals Board (the Board) that a CAA permit needed to operate the plant could not be issued without a showing that the plant would use Best Available Control Technology (BACT) to reduce carbon dioxide emissions.
Fossil-fuel fired power plants, petroleum refineries, and other major stationary sources are required to include BACT for air pollutants that are subject to regulation under the CAA. EPA granted the permit at issue in In re Deseret Power Cooperative[2] after concluding that carbon dioxide was not subject to regulation under the CAA, and that BACT review was therefore unwarranted. Petitioner appealed that decision to the Board, which hears challenges to EPA permits. The Board did not conclusively rule that carbon dioxide was indeed subject to regulation under the CAA. But the Board did rule that EPAs rationale for not including BACT was unsupported by the administrative record and remanded the matter back to the agency for further deliberation.
It is virtually certain that a determination as to whether carbon dioxide is subject to regulation under the CAA will not occur during the Bush Administrations waning days. The Boards decision in In re Deseret, however,ensures that the incoming Obama EPA will be required to address the issue early on. EPA has three principal options on remand. First, EPA could bolster its administrative record to further support the conclusion that carbon dioxide emissions do not trigger BACT requirements. Given President-elect Obamas pledge to address greenhouse gas emissions early in his administration,[3] it would appear unlikely that EPA would make such a determination. Second, EPA can conclude that carbon dioxide is indeed subject to regulation. Such a conclusion would have far reaching ramifications. Not only would it require BACT to control carbon dioxide emissions at major industrial facilities, but it would also potentially impose BACT requirements on a broad range of smaller facilities that generate over 250 tons of carbon dioxide per year, but that have previously been unregulated under the CAA, including hospitals, schools, and apartment buildings.
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