E.P.A. challenged on greenhouse gas rules

by Bryan Salvage
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WASHINGTON – A Petition for Review was filed in the D.C. Circuit Court of Appeals on April 2 by the National Cattlemen’s Beef Association and the Coalition for Responsible Regulation Inc. challenging the Environmental Protection Agency's recent rule, which reconsidered the so-called “Johnson Memo” interpreting when greenhouse gases) become subject to the federal Prevention of Significant Deterioration) permit program.

Announced March 29, the final rule is the second step in E.P.A.’s phased-in approach to G.H.G. regulation. Under E.P.A.’s decision, facilities would be required to get P.S.D .permits for G.H.G. emissions starting in January 2011 when the first national rule controlling G.H.G.s (from cars) takes effect, and would be required to do so without E.P.A. undertaking the deliberate rulemaking process required by the Clean Air Act.

While E.P.A. touts its decision to hold off on regulation until next year as a “common sense” plan to give industry time to comply, this is nothing more than a smokescreen in an attempt to distract the public from the fact that E.P.A. is circumventing the normal, required rulemaking process for such regulation, charged Tamara Thies, N.C.B.A. chief environmental counsel.

“Under the C.A.A., the E.P.A. must adopt a National Ambient Air Quality Standard for a pollutant prior to regulating it under the P.S.D. program,” she added.. “No such rulemaking has been undertaken. As we have said many times, the consequence of G.H.G. regulation will be economic devastation for American businesses. Before imposing very-real, long-term negative impacts on the entire U.S. economy, the E.P.A. should at least follow Congress’ strict instructions for regulating pollutants under the P.S.D. program.”

“Grandfathering” is also strictly prohibited by the rule, which means any project not actually issued a final P.S.D. permit by Jan. 2, 2011, will be subject to G.H.G. emissions reviews prior to such permitting. Inevitably, a number of projects will be held up until G.H.G.-based reviews can take place, Ms. Thies said. These projects will be left with little recourse once the compliance deadline takes effect.

And while E.P.A. will not grant sufficient time for states to amend their permitting-programs prior to the imposition of federal G.H.G. regulations, states will not be allowed to issue valid permits after January 2011 without G.H.G. reviews.

“E.P.A.’s decision to violate mandates under the Clean Air Act and to try to sell the rule to the public as if it were doing industry a favor by deferring the compliance date, is unfortunate,” Ms. Thies said. “While it may buy some additional time from a permitting standpoint, it does not solve the inherent problems associated with the fact that the C.A.A. is being circumvented in the process, and E.P.A.’s decision to regulate G.H.G.s in the first place. With so much scientific uncertainty surrounding climate change, and humans’ alleged contribution to it, it’s extremely premature for E.P.A. to be moving forward with G.H.G. regulation.”

E.P.A. issued a finding in December 2009 that G.H.G.s are an “endangerment” to public health and the environment — providing E.P.A. with a foundation from which to regulate G.H.G.s under the Clean Air Act, from small and large sources throughout the economy, including farms, hospitals, office buildings and schools. NCBA and the Coalition filed petitions with the D.C. Circuit Court of Appeals and E.P.A. challenging the science behind E.P.A.'s finding.

N.C.B.A. also supports resolutions by Sen. Lisa Murkowski (R-Alaska), Rep. Ike Skelton (D-Mo.) and Rep. Joe Barton (R-Texas) to prevent E.P.A. from moving forward on G.H.G. regulation.

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