CLEAN AIR ACT

REGULATION OF GHG:
EPA S ADVENTURES IN
WONDERLAND
AS TOLD BY ERIC GROTEN
Texas Public Policy Foundation Energy-Climate Summit
September 25, 2014
THE SUPREME COURT
INHALES DEEPLY
A well-documented rise in global temperatures has coincided with a
significant increase in the concentration of carbon dioxide in the
atmosphere. Respected scientists believe the two trends are related. For atmosphere. Respected scientists believe the two trends are related. For
when carbon dioxide is released into the atmosphere, it acts like the
ceiling of a greenhouse, trapping solar energy and retarding the escape of
reflected heat. It is therefore a speciesthe most important speciesof a
greenhouse gas.
Justice John Paul Stevens, Massachusetts v. EPA, 549 U.S. 497 (2007)
THE COURT NEGLECTS I TS
RES PONS I BI LI TI ES : ARTI CLE I I I S TANDI NG
WORDS VANISH FROM THE
STATUTE
HOW A CONSTI TUENT OF CLEAN
AI R BECOMES AN AI R POLLUTANT
302 (g) The term air pollutant means any air pollution agent or
combination of such agents, including any physical, chemical, biological,
radioactive (including source material, special nuclear material, and radioactive (including source material, special nuclear material, and
byproduct material) substance or matter which is emitted into or
otherwise enters the ambient air. Such term includes any precursors to the
formation of any air pollutant, to the extent the Administrator has
identified such precursor or precursors for the particular purpose for
which the term air pollutant is used.
THE COURT STARTS ORDERI NG
THE OTHER BRANCHES AROUND
NO TI ME TO SAY HELLO.
GOODBYE!
I M LATE, I M LATE, I M LATE, FOR
S OME VERY I MPORTANT DATES
Endangerment Finding (Dec. 2009)
Timing/Triggering Rule (Mar. 2010) Timing/Triggering Rule (Mar. 2010)
Tailpipe Rule (May 2010)
Tailoring Rule (June 2010)
AND STARTS ORDERI NG STATES AS
THOUGH I TS SUBJ ECTS
GENERAL IRRATIONALITY
ENSUES
PSD for a global pollutant
Local impact assessments ignored
BACT required for something for which there is no CT
Permits triggered by GHG emissions require NHPA and
ESA analyses unlinked to GHG emissions
AS DOES POWER-MADNESS
THE D. C. CI RCUI T FOLLOWS EPA
I NTO THE RABBI T HOLE
THE S UPREME COURT BEGI NS TO
RECOGNI ZE I T MAY HAVE A PROBLEM:
UARG V. EPA
THE COURT PASSES ON GHG-
TRIGGERED PERMITS
SCORING UARG
Five justices: The Clean Air Act neither compels nor allows
permits to be required on the sole basis of GHG emissions
Seven justices: The Clean Air Act does allow EPA to adopt rules
requiring anyway sources to undergo BACT
Two justices: Massachusetts was wrongly decided
Four justices: EPA can do whatever it wants
EPA REMAINS IN
DENIAL
BUT THE SUPREME COURT MAY
HAVE HAD ENOUGH
We are not willing to stand on the dock and wave goodbye as EPA
embarks on this multiyear voyage of discovery.
SHOTS ACROSS THE BOW
[O]ur decision should not be taken as an endorsement of all aspects of EPAs
current approach, nor as a free rein for any future regulatory application of
BACT in this distinct context.
WHAT S LEFT FOR GHG
UNDER THE CAA?
NSPS and ESPS
Rule-specific endangerment findings?
Demonstrations of benefits? Demonstrations of benefits?
More rulemaking petitions
Source-specific rules (mobile and stationary
sources)
NAAQS
WHAT S THE POINT?
If you dont know where youre going, any road
will get you there.