While Congress debates legislation to cap greenhouse gas emissions, the Environmental Protection Agency is acting on several administrative proposals that could lead to regulation of the emissions.
Final Rule: Mandatory Reporting of Greenhouse Gases
The Fiscal Year 2008 Consolidated Appropriations Act directed the EPA to create a program for mandatory reporting of greenhouse gas emissions. On Friday, April 10, 2009, EPA invited comments on a proposal to require reporting of greenhouse gas emissions from all sectors of the economy. According to EPA, more than 13,000 entities could be affected and the estimated cost to private businesses for the first year would be $160 million. EPA finalized the rule for this program on September 22, 2009. This reporting rule will apply to most stationary sources emitting at least 25,000 tons of carbon dioxide equivalent per year, representing about 85% of U.S. emissions. Beginning January 1, 2010, companies that meet this threshold must start collecting emissions data to report to EPA. The first annual reports will be due in 2011.
Final: Endangerment Finding and Cause or Contribute Finding for Greenhouse Gases
On April 2, 2007, in Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court found that the Federal Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that [EPA] forms a “judgment” that such emissions contribute to climate change. The Supreme Court remanded to EPA to make the decision as to whether greenhouse gases cause, or contribute to, air pollution which may reasonable be reasonable be anticipated to endanger public health or welfare.
In response to this decision, on December 7, 2009, the EPA issued two distinct findings regarding greenhouse gases under section 202(a) of the Federal Clean Air Act:
- In the Endangerment Finding, EPA found that the current and projected concentrations of greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations.
- In the Cause or Contribute Finding, EPA found that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.
These findings do not themselves impose any requirements on industry or other entities. However, this action is a prerequisite to finalizing the EPA’s proposed greenhouse gas emission standards for light-duty vehicles, which were jointly proposed by EPA and the Department of Transportation’s National Highway Safety Administration on September 15, 2009. Although the initial rule proposal targets only the transportation sector, EPA will likely be required to regulate all greenhouse gas emission sources.
EPA oversight under the Clean Air Act would subject many more entities to regulation than the cap and trade programs proposed in Congress. The American Clean Energy and Security Act would regulate entities that emit 25,000 tons or more of carbon dioxide equivalent. Regulation under the Clean Air Act would subject entities that emit as little as 100 tons or more of carbon dioxide equivalent. Read comments submitted to EPA.
Permit Threshold for Regulating Greenhouse Gas Emissions from Stationary Sources
EPA finalized a rule on May 13, 2010, to increase the threshold for requiring Prevention of Significant Deterioration (PSD) Permits for greenhouse gas emissions from stationary sources under the Clean Air Act from the current 100/250 tons per year for emissions of conventional pollutants. This approach is known as the “tailoring rule.” Regulation of facilities under this rule will be under a multiple phase process, with the largest greenhouse gas emitters requiring additional permits first.
Governor Rick Perry charged the Texas Advisory Panel on Federal Environmental Regulations to review EPA's proposed endangerment finding. The task force found this proposal could lead to regulation that could:
- subject small businesses, office buildings, schools, hospitals, farms, multi-family residences and even large single-family homes to certain regulation,
- increase costs to Texas Commission on Environmental Quality from $40 to $80 million annually, and
- create economic hardship and regulatory uncertainty for Texas businesses.
The state of Texas filed a Petition for Review with the U.S Court of Appeals for the D.C. Circuit challenging the Environmental Protection Agency’s endangerment finding for greenhouse gases, and will also file a Petition for Reconsideration with the Environmental Protection Agency, asking the administrator to review her decision regarding the endangerment finding. More information about this legal action can be found here… http://governor.state.tx.us/news/press-release/14253/