The Environmental Protection Agency agrees with critics who contend that if the agency applies the Clean Air Act to regulate greenhouse gases it would vastly expand the universe of regulated entities.
This is particularly true, the agency notes, if it applies the same emission standards under the act that apply to conventional pollutants. In fact, doing so would lead to "absurd results," EPA said. So, last week the agency a proposed rule that would tailor provisions of the act to better fit major sources of greenhouse gas emissions.
Under Title V of the act, stationary sources with actual or potential emissions of at least 100 tons/yr of conventional pollutants (the so-called criteria pollutants such as sulfur dioxide or nitrous oxides), are regulated. Under the prevention of significant deterioration language of the act's New Source Review program, the threshold is 250 tons/yr.
If the PSD and Title V requirements are triggered at the statutory threshold levels (100/250- tons/yr) for greenhouse gases, "an enormous influx of permits would occur -- tens of thousands of PSD permits and millions of Title V permits -- which would create enormous burdens for permitting authorities that would far exceed their current capacity to administer the PSD and Title V program," the agency said in its proposed rulemaking.
How enormous? Compared to the 280 PSD permits issued per year, if a GHG major source threshold of 250 tons/year of carbon dioxide equivalent were applied, "almost 41,000 new and modified facilities per year would be subject to review," EPA said. On a national basis, the annual administrative cost of including all GHG emitters above the 250 tons/yr threshold is estimated at $257 million.
Triggering Title V requirements for greenhouse gases would subject more than 6 million sources to regulations because they exceed the 100 tons/yr threshold for GHG. This would be in addition to adding GHG requirements for 14,700 existing Title V permits. The estimated administrative cost is estimated at $15 billion annually.
Precisely the problem, agency critics argue. Regulating greenhouse gases under the Clean Air Act will be enormously expensive and burdensome and reach into every corner of the US economy -- from farms to hospitals to bakeries to nursing homes. (It should be noted that many of the opponents of EPA regulation of GHGs also oppose cap-and-trade legislation).
A US Chamber of Commerce of study reported that regulating GHGs under the act would cause one million commercial buildings, 200,000 manufacturing operations and about 20,000 large farms to become regulated sources.
In fact, EPA notes, a literal application of the act's 100/250 tons/yr threshold would be contrary to and undermine Congressional intent that the act authorize economic growth with environmental safeguards, and that it apply only to larger sources. It would sweep in tens of thousands of smaller sources that Congress did not intend to include and preclude hundreds of larger sources from obtaining permits because of the strain on administrative sources, the agency said.
EPA's solution is to rely on the "absurd results doctrine" to justify changing the emissions threshold in the act to 25,000 tons a year, as it applies to greenhouse gas emissions.
Courts are reluctant to invoke this doctrine "precisely because it entails departing from the literal application of statutory provisions," the agency said. Nevertheless, they do so when the literal application of a provision runs contrary to expressed congressional intent "or are otherwise so illogical or contrary to sensible policy as to be beyond anything that Congress could have reasonably intended."
Thus, the agency is counting on the courts (because a legal challenge is inevitable), to validate its authority to transform what would be an absurd and illogical application of the Clean Air Act into what EPA considers a sensible and workable regulatory program.
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