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WASHINGTON, D.C. — U.S. EPA Administrator Stephen Johnson has issued a memorandum saying that carbon dioxide is not a pollutant that is subject to regulation when approving new power plants.
Johnson’s 19-page memo last Thursday produced a swift reaction from the Natural Resources Defense Council, which said the finding flies in the face of a November decision by the EPA’s Environmental Appeals Board rejecting the same line of reasoning Johnson laid out in his memo.
“It’s a marvel to behold an EPA action that so utterly disdains global warming responsibility and disdains the law at the same time,” said John Walke, director of the NRDC Clean Air program, in a statement. “EPA’s administrator is defying the agency’s own judges, the Clean Air Act, and the course of history that recognizes the urgency in tackling global warming.
“The administrator’s 11th hour action is a transparently cynical attempt to tie the hands of the incoming administration and prevent Clean Air Act regulation of global warming pollution. The ultimate consolation, however, is that today’s EPA offense is so ham-handed, so divorced from the law, that it can and should be reversed by the Obama administration with the stroke of a pen.”
Johnson’s memo follows a November 13 ruling by the Environmental Appeals Board, which rejected a permit issued by the EPA’s regional office in Denver for a 110 megawatt coal-fired plant on the Uintah and Ouray Indian Reservation in Utah. A three-judge panel of the board said the office had not provided support for its decision to approve the plant without requiring it to have the best controls available for CO2 emissions. The board also directed the office to reconsider its decision not to put the controls in place.
The board’s decision, widely hailed by environmentalists, was in line with a 2007 Supreme Court ruling that carbon dioxide, the principle source identified in global warming, is a pollutant and should be regulated by the EPA under the federal Clean Air Act.
However, by issuing his memo, according to EPA, Johnson interprets the agency rules that “describe what air pollutants are subject to the federal Prevention of Significant Deterioration (PSD) program, which is the New Source Review program that applies in areas meeting national air quality standards.”
“(S)everal members of the public are concerned about authorizing additional sources of carbon dioxide to construct out of concern that once built, such sources will forever emit carbon dioxide without limitation,” Johnson wrote. “However, the permitting of new sources without limitations on carbon dioxide at present does not foreclose limitation of such emissions in the future, if the agency ultimately determines that control of such emissions is warranted after considering all of the implications of such an action through the process started with the ANPR [Advance Notice of Proposed Rulemaking].
“Some stakeholders argued that EPA should apply PSD to pollutants that are only monitored or reported because requiring a source to report emissions of a pollutant can provide an incentive for that source to reduce its emissions of the pollutant. While I recognize that monitoring and reporting requirements may sometimes have this effect, such requirements are primarily intended to gather information and do not ensure that any source will in fact control emissions. As stated above, I believe that a pollutant should not become subject to mandatory emissions limitations under the PSD program until the administrator (or Congress) has decided that such pollutants should be directly controlled by regulation. The concerns discussed above about predetermining the result of the information gathering exercise are not changed by the fact that some sources might be motivated to voluntarily reduce emissions because of a mandatory disclosure of the nature and extent of their emissions…”
Johnson’s memorandum is available here.
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EPA has yet to make an endangerment finding on CO2. The period for comments on it’s Advance Notice of Proposed Rulemaking (ANPR) ended November 28. A decision (yes or no on endangerment) won’t be made until next year. EPA can’t regulate (limit) substances for which an endangerment finding has not first been made. This is the law and is long-standing EPA policy. Without such a policy EPA could regulate anything, dangerous or not. The November EPA panel decision violated this policy by putting the cart (regulation) before the horse (endangerment finding), hence Johnson’s memo overruling the panel.
Those who criticize Johnson and dispute this policy are saying that EPA should regulate something before it finds it to be dangerous. That makes no sense and EPA doesn’t have the statutory authority to do that.