EPA Faces Significant Challenges to Its Proposed Rulemakings to Control GHGs

EPA Faces Significant Challenges to Its Proposed Rulemakings to Control GHGs
Shannon Crawford, Manager of Legislative and Regulatory Programs

Next month, EPA is scheduled to finalize their Light Duty Vehicle Standard, a ruling whose name oversimplifies the massive impact it will have on the regulated community. These standards would require new vehicles to have carbon dioxide emissions below 250 grams per year. According to EPA, this will set the precedent for more extensive regulation of greenhouse gases (GHG) under other parts of the Clean Air Act (CAA). Previously, EPA had not set standards for GHG, however in Supreme Court case, Massachusetts vs. EPA, the court ruled GHGs are air pollutants. In order to determine whether or not they could be regulated by EPA, the Court ruled EPA must determine if they pose a danger to public health and welfare. In December of last year, EPA responded to this by issuing the endangerment finding, formally stating GHGs are a danger to public health and welfare. This finding provides EPA with the legal basis to promulgate the vehicle standards next month.

SWANA has been tracking these vehicle rulings very closely because they set the precedent for other rulings, which will impact solid waste operations. EPA has stated that once they promulgate emissions standards for GHGs, these gases will immediately be subject to other provisions of the CAA. This interpretation would subject solid waste facilities such as landfills and waste-to-energy plants to Prevention of Significant Deterioration (PSD) provisions in which facilities that exceed certain thresholds of various pollutants must show they are using the Best Available Control Technology (BACT) to reduce these emissions. GHGs would also be subject to Title V permitting requirements. Many of the landfills affected have never previously been subjected to regulation under the CAA. The triggering thresholds for PSD and Title V, which are set at levels for criteria or hazardous air pollutants, would subject hundreds of thousands of facilities to these regulations if GHGs are regulated at the same thresholds.

Although EPA is insistent upon their course, they have received challenges to each action that lead them on the path to using the CAA to regulate GHGs.

Challenges to the Endangerment Finding

Senator Murkowski of Alaska has been a major opponent of EPA using CAA provisions to regulate GHG. On January 21, she introduced a “Resolution of Disapproval” in an attempt to nullify the endangerment finding. Nearly forty senators support the resolution including three Democrats. The odds of the resolution being approved are unlikely since it would require a Presidential signature, however Senator Murkowski is hoping that its sends a strong message to EPA that there is considerable Congressional opposition to what they are doing.

This is not the Alaskan Senator’s first attempt at reigning in EPA. Last September Senator Murkowski attempted to add an amendment to an Interior-EPA Spending bill that would have prevented EPA from controlling GHG emissions from stationary sources for one year.

Challenges to the Light Duty Vehicle Standard

During the open comment period on the light duty vehicle standard, EPA received many challenges to their authority to proceed with such a ruling. One such challenge was issued by a group of associations representing a large sector of the industries which will eventually be affected by these rules: the American Chemistry Council, the American Iron and Steel Institute, the American Meat Institute, the Corn Refiners Association and the National Oilseed Processors Association.

In their letter these associations stated that EPA did not consider the effects the light duty vehicle rule would have on stationary combustion sources and EPA’s failure to do so is “capricious and arbitrary”. The Supreme Court has ruled in previous cases that rulings are “arbitrary and capricious” if the agency “entirely failed to consider an important aspect of the problem”. The associations believe that EPA has failed to fully assess and analyze the effects of this ruling outside the motor vehicle sector although EPA is aware that its impact is not limited to this sector.

An additional argument made in the Associations’ letter concerns EPA’s view that issuance of the motor vehicle rule automatically triggers PSD and Title V applicability for GHGs. The Associations believe that this is incorrect and state that the automatic triggering of PSD provisions is not the result of the plain meaning of the CAA, but instead the result of EPA’s interpretations.

Challenges to the Tailoring Rule

Under its so-called Tailoring Rule, EPA proposed to develop what they consider more reasonable PSD and Title V thresholds for GHGs. In our comment letter to EPA regarding this ruling, we did not comment on EPA’s legal authority to regulate GHG using CAA provisions. Instead we offered analyses that we believe showed that EPA is misinterpreting the congressional intent of the provisions. When Congress originally developed the PSD and Title V permits provisions of the CAA, they were meant to apply only to “major sources”. Under EPA’s proposal, facilities that are not “major” would be regulated. Doing a comparison of combustion units currently operating within PSD regulations for covered pollutants can yield comparable CO2e emissions of up to 770,000 tons per year (tpy), more than 30 times the 25,000 tpy threshold EPA has proposed as “major”.

Future Actions

EPA has stated that they believe that cap and trade legislation such as passed by the House of Representatives offers a better approach to control of GHGs than regulation under the CAA. However because of the Massachusetts vs. EPA Supreme Court case they believe they are obliged to move forward with these rulemakings. While many organizations may not agree, it is important to take these proposals seriously and we will continue to track these rulemakings and provide updates as they occur to our membership.

Please contact me directly with any questions.

Shannon Crawford
Manager of Legislative and Regulatory Programs
scrawford@swana.org
240.494.2241 - direct

SWANA Announces North American Carbon Credit Summit

*Summit To Be Held April 14, 2010 in Reno, Nevada in Conjunction with April Events

Silver Spring, MD - The Solid Waste Association of North America (SWANA) has announced that it will host the North American Carbon Credit Summit on Wednesday, April 14, 2010 in Reno, Nevada. The one day event will provide the most current information available on the constantly evolving carbon credit market as it applies to municipal solid waste professionals.

Developed to address the growing interest SWANA has observed in carbon credit markets, the Summit will present five sessions including an overview of the environmental commodities markets and legislative and regulatory developments as well as individual case studies. Presenters at the Summit will include representatives from organizations involved in credit verification, project consulting, greenhouse gas inventories, RECs and trading platforms, among others.

The Summit will be held in conjunction with SWANA’s 15th Annual Landfill Symposium and Planning & Management Conference, which will take place Monday, April 12 and Tuesday, April 13, 2010. Individuals who register for the North American Carbon Credit Summit will also receive complimentary registration to the Landfill Symposium and Planning & Management Conference. For more information on the Summit, visit http://lfpm.SWANA.org/Carbon.