EPA Issues Clarification On GHG Regulation Timeline

Sen. John D. (Jay) Rockefeller IV, chairman of the Senate Commerce, Science and Transportation Committee, joined a group of coal-state senators in sending a letter to Environmental Protection Agency (EPA) Administrator Lisa Jackson challenging EPA's potential regulation of greenhouse gases (GHGs) from stationary sources under the Clean Air Act (CAA).

The letter requests that Jackson clarify the EPA timetable and suspend EPA regulations for industrial facilities so Congress can consider comprehensive energy and climate legislation. EPA regulation of GHGs from stationary sources has far-reaching implications for the economy as a whole and the energy sector in particular, according to the senators.

‘The president and you have been explicit in calling on Congress to pass comprehensive legislation that would enhance our nation's energy and climate security,’ the senators wrote. ‘We strongly believe this is ultimately Congress' responsibility, and if done properly, will create jobs, spur new clean energy industries and greatly advance the goal of U.S. energy independence. If done improperly, these opportunities could be lost.’

In her response to the letter, Jackson ‘acknowledges that a Senate resolution of disapproval of EPA's endangerment finding, would, if adopted, prevent EPA from issuing its GHG standards for light-duty vehicles,’ explains law firm Vinson & Elkins in a document on its Web site.

However, Jackson does not directly state that ‘by preventing EPA from regulating GHG emissions from light-duty vehicles, Senate Joint Resolution 26 would also save stationary sources from having to authorize their GHG emissions under the CAA – a requirement that, at least under all of EPA's prior interpretations, is not triggered until there is some actual regulation of GHG emissions under the CAA,’ Vinson & Elkins continues.

Jackson's letter also indicates a shift in GHG regulation implementation. The EPA is now expected to phase in requirements and regulation of GHGs for large stationary sources beginning in 2011. During the first half of 2011, only facilities already required to apply for CAA permits for non-GHG emissions will be required to add GHG emissions information to their permit applications.

‘Further, I am expecting that greenhouse gas emissions from other large sources will phase in starting in the latter half of 2011,’ she wrote. ‘Between the latter half of 2011 and 2013, I expect that the threshold for permitting will be substantially higher than the 25,000-ton limit that EPA originally proposed.’

‘In any event, EPA does not intend to subject the smallest sources to Clean Air Act permitting for GHG emissions any sooner than 2016,’ Jackson added.

According to Vinson & Elkin, these changes ‘reflect a relaxation of EPA's previous position on when sources' GHG emissions would require CAA authorization, and signal further recognition by EPA of the widely reported problems associated with treatment of GHGs as pollutants subject to CAA permitting requirements.’

The revised schedule will allow for ‘a reasonable transition time’ for large stationary sources, concludes the National Resources Defense Council (NRDC). Overall, NRDC believes the EPA's responses to the senators' inquiries demonstrate that pollution can be reduced in ‘an effective and reasonable manner’ through phase-in measures.

SOURCES: Office Sen. John D. (Jay) Rockefeller IV, Vinson & Elkins, U.S. Environmental Protection Agency, Natural Resources Defense Council

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