endangerment finding

Another Oldie But Goodie: Mark Mills 1998 CO2 Compliance Burden Study

by Marlo Lewis on May 4, 2010

in Global Warming

In the interest of ensuring public access to climate-related documents that may be hard to find, I am posting here the original, June 1998 study by technology analyst Mark P. Mills of the sprawling compliance burdens of EPA regulating carbon dioxide (CO2) as an air pollutant under the Clean Air Act (CAA).

The study, entitled A Stunning Regulatory Burden: EPA Designating CO2 As A Pollutant, estimated that applying CAA permitting requirements to CO2 would compel EPA to regulate over 1 million small- and mid-size businesses.

In September 2008, Mills and his daughter Portia updated the study for the Chamber of Commerce in a report entitled A Regulatory Burden: The Compliance Dimension of Regulating CO2 as a Pollutant.

Although superceded by the later report, the June 1998 report remains highly relevant to the climate policy debate.

A Stunning Regulatory Burden was a direct response to the April 1998 Memorandum by then EPA General Counsel Jonathan Z. Cannon asserting EPA’s authority under the Clean Air Act to regulate CO2 and other greenhouse gases (GHGs). Petitioners in Massachusetts v. EPA partly relied on the Cannon memorandum to press their claim that EPA had a statutory obligation to issue an endangerment finding and regulate GHG emissions from new motor vehicles under Sec. 202 of the Act.

Most importantly, the June 1998 Mills study reminds us that EPA had to know all along that a victory for petitioners in Massachusetts v. EPA would dramatically expand its regulatory reach beyond any plausible delegation of regulatory authority from Congress.

Yet during all the years when the case was being litigated (Sep. 2004 – April 2007), EPA never pointed out the regulatory ramifications of a victory for petitioners. Only long after losing case, in its Advanced Notice of Proposed Rulemaking (July 2008) and Tailoring Rule (October 2009), did EPA acknowledge that the endangerment finding tees up the very sorts of regulatory excesses Mills warned about a decade earlier. 

The 5-4 majority in Mass v. EPA decided in favor of petitioners partly in the belief that an endangerment finding would not lead to ”extreme measures” (p. 531). But according to the Tailoring Rule, unless EPA “tailors” — that is, amends — the CAA, the endangerment finding will lead inexorably to a host of “absurd results” that conflict with and undermine congressional intent.  

The question arises: Why didn’t EPA explain this when it really mattered? Why did EPA pull its punches in Mass. v. EPA? Why didn’t EPA make the case that the endangerment finding sought by petitioners would lead a regulatory cascade that Congress never intended and would not approve?

I think the answer is obvious. For EPA, losing the Massachusetts case meant gaining the power to regulate fuel economy for the auto industry and, more importantly, the power to determine climate and energy policy for the nation. Strong circumstantial evidence suggests that EPA wanted to be thrown into the greenhouse briar patch all along.

An Oldie But A Goodie: John Christy’s Letter to Lisa Jackson on Fuel Economy Regulation

by Marlo Lewis on April 28, 2010

in Global Warming

Well, it’s not really so old. I’m referring to a March 10, 2009 letter by atmospheric scientist John Christy to EPA Administrator Lisa Jackson. I post it on Open Market and GlobalWarming.Org because it is hard to find on the Internet, and Dr. Christy makes a key point that will need to be made again and again in the upcoming Senate battle over the Murkowski resolution of disapproval to veto EPA’s endangerment finding.

The endangerment finding is the  statutory prerequisite for the joint greenhouse gas/fuel economy standards rule that EPA and the National Highway Traffic Safety Administration (NHTSA) finalized on April 1, 2010. Veto the endangerment finding, Murkowski foes warn, and NHTSA will have to ”de-couple” its portion of the joint GHG/fuel economy rule, which could delay by a year implementation of model year 2012 fuel economy standards.

Well, boo-hoo! Keeping the model year 2011 standards in place for an extra year would make no perceptible difference in atmospheric CO2 concentrations, average global temperature, weather patterns, or public health, even if one assumes that climate change is a big problem.

Christy’s letter puts this in perspective. For the sake of argument, Christy adopts the IPCC’s warming projections for its mid-range (A1B) emissions scenario. Even if the United States were to adopt immediately a 43 mpg fuel-economy standard, the net reduction in average global temperature would be 0.01°C in 2100. Such a change would be too small to detect. Even more microscopic would be the impact of the 34.1 mpg standard that NHTSA and EPA want to phase in by model year 2016. Whether that standard is delayed for a year or implemented on schedule is climatologically irrelevant.

In contrast, the economic and safety benefits of a one-year delay could be substantial. The distressed auto industry would not have to spend an estimated $5.9 billion in incremental technology investments (Table 4A.5-6) in model year 2012.

In addition, slower implementation of economy standards would slow the pace at which automakers decrease average vehicle size and weight. Reducing vehicle weight and size is a vintage method of improving fuel economy — but it also negatively affects vehicle safety. NHTSA’s 2002 fuel economy report concluded that regulatory-induced vehicle downsizing contributed to 1,300-2,600 fatalities and 13,000 to 26,000 serious injuries in 1993, a typical year. 

EPA and NHTSA struggle to belittle the size-safety tradeoff in their joint rule. However, they do include a “worst-case” scenario in which the new standards cause an additional 493 deaths in model year 2016 (see p. 144). Slowing the pace of fuel economy regulation would save lives.

Murkowski Resolution — A Constitutional Imperative

by Marlo Lewis on March 30, 2010

in Global Warming

Today on MasterResource.org, the free-market energy blog, I explain how EPA, by granting the California waiver, finding endangerment, and perhaps even by pulling its punches in the Massachusetts v. EPA Supreme Court case, has positioned itself to regulate fuel economy, set climate and energy policy for the nation, and amend the Clean Air Act – powers never delegated to the agency by Congress. 

It is time to rein in this rogue agency. The Congressional Review Act Resolution of Disapproval introduced by Sen. Lisa Murkowski (R-AK) is the way to do it.

What Happens If Congress Blocks EPA?

by Marlo Lewis on March 9, 2010 · 2 comments

in Global Warming

That’s the topic of this week’s National Journal energy blog. In my contribution, I argue that EPA has been playing a mischievous game that endangers democracy, and that Sen. Lisa Murkowski’s legislation to veto the agency’s endangerment finding would remove this threat. 

In a Feb. 22 letter to Sen. Jay Rockefeller (D-WV), EPA Administrator Lisa Jackson warns that enactment of the Murkowski legislation would scuttle the joint EPA/National Highway Traffic Safety Administration (NHTSA) greenhouse gas/fuel economy rulemaking, which in turn would compel the struggling auto industry to operate under a “patchwork quilt” of state-level fuel-economy regulations.

Ms. Jackson neglects to mention that the patchwork threat exists only because she, reversing Bush EPA Administrator Stephen Johnson’s decision, granted California a waiverto implement its own GHG/fuel economy program. Had Jackson reaffirmed Johnson’s denial, there would be no danger of a patchwork, hence no ostensible need for the joint EPA/NHTSA rulemaking to avert it.

As my blog post explains, EPA should not have approved the waiver in the first place. The California GHG/fuel economy program violates the Energy Policy and Conservation Act, which prohibits states from adopting laws or regulations “related to” fuel economy. Worse, the waiver creates a reverse right of preemption whereby states may nullify federal law within their borders — an affront to the Supremacy Clause. 

Specifically, the waiver would allow California, and other states opting into the California program, to nullify within their boundaries the reformed national fuel economy program that Congress enacted in the 2007 Energy Independence and Security Act (EISA). That leads straight to a patchwork of state-by-state compliance regimes inimical to a healthy auto industry.

The game EPA is playing is a classic case of bureaucratic self-dealing.

First, EPA endangers the U.S. auto industry by authorizing states to flout federal law and the Constitution. Then, EPA proposes to avert disaster via a rulemaking that just happens to put EPA in the driver’s seat in regulating fuel economy – a power Congress never delegated to EPA when it enacted and amended the Clean Air Act.

Nor is that all. The joint GHG/fuel economy regulation will compel EPA to regulate CO2 from stationary sources – another power Congress never delegated to EPA. By expanding its control over the transport sector, EPA will then have to expand its control over manufacturing, power generation, and much of the commercial and residential sectors, too, because all emit CO2.

In addition, the motor vehicle GHG rule sets the stage for EPA to “tailor,” that is amend, the Clean Air Act so that the agency can delay imposing pre-construction and operating permit requirements on small business, which would surely ignite a political backlash.

So thanks to the endangerment finding, EPA not only gets to play in NHTSA’s fuel-economy sandbox, and extend its tentacles throughout the economy, it also gets to play lawmaker, violating the separation of powers.

In light of all the new powers EPA now expects to wield, it is hardly surprising that EPA never made the strong case against Clean Air Act regulation of CO2 in Massachusetts v. EPA. Here’s what EPA should have argued:

  • EPA cannot regulate GHG emissions from new motor vehicles under Sec. 202 of the Clean Air Act without regulating CO2 under the Act as a whole. 
  • Aplying the Act as a whole to CO2 leads ineluctably to “absurd results” that contravene congressional intent.
  • Therefore, Congress could not have intended for EPA to regulate GHG emissions under Sec. 202.

Did EPA throw the fight in the 11th round? I dunno, but losing the Massachusetts case was surely sweet victory to those in the agency who long to regulate America into a ”clean energy future.” The Massachusetts decision laid the groundwork for EPA to deal itself into a position to bypass the people’s elected representatives, impose its will on the auto industry, and, in time, dictate national climate and energy policy.

What happens if Congress enacts Sen. Murkowski’s resolution, nixes the endangerment finding, and mothballs the GHG/fuel economy rule? The authority to make law and national policy returns to where the framers of the Constitution intended — the people’s elected representatives.

Does Climategate Undermine the Scientific Integrity of EPA’s Endangerment Finding? You Betcha.

by Marlo Lewis on March 3, 2010 · 1 comment

in Global Warming

Instead of exercising its “judgment,” as required by Sec. 202 of the Clean Air Act, to determine whether greenhouse gas (GHG) emissions endanger public health and welfare, EPA largely deferred to the judgment of an external agency not subject to U.S. data quality and freedom of information laws — the United Nations Intergovernmental Panel on Climate Change (IPCC).

The IPCC developed three lines of evidence for its conclusion that GHG emissions are causing dangerous global warming. The first is based on the IPCC’s understanding of the physics of the climate system. The second is the claim that recent decades are unusually warm compared to previous centuries during the current interglacial period known as the Holocene. The third line of evidence is the asserted agreement between observations and computer model simulations.

Peabody Energy’s 240-page petition for reconsideration assesses these lines of evidence in light of new information not in EPA’s possession when it drafted the endangerment finding. Much of this new information is contained in the thousands of emails and other files that produced the Climategate scandal. The files and emails provide an insider’s look at the professional (or unprofessional) behavior of leading climate scientists at the UK’s Climate Research Unit and their colleagues in the United States. This scandal has led to the resignation (allegedly temporary) of Dr. Phil Jones as director of the CRU and an official determination that the CRU violated the UK’s freedom of information act. 

Peabody concludes that the Climategate files undermine each of the IPCC’s principal lines of evidence, and confirm what many climate “skeptics” had long suspected:

The CRU information reveals that many of the principal scientists who authored key chapters of the IPCC scientific assessments were driven by a policy agenda that caused them to cross the line from neutral science to advocacy. Indeed, they went far beyond even what is acceptable as advocacy, as they actively suppressed information that was contrary to the “nice, tidy story” that they wished to present, they refused to disclose underlying data concerning the studies in which they were involved to third parties who might use the information to critique those studies, they engaged in a wide variety of improper and indeed unethical tactics to manipulate the type of scientific information that appeared both in the IPCC reports and in the peer-reviewed scientific journals upon which the IPCC largely relied, and they relied on inaccurate and unverified information from secondary source material that was included anyway to advance the authors’ advocacy agenda. Moreover, the Information Commissioner’s Office of the United Kingdom (“U.K.”), the agency that oversees and enforces the U.K.’s freedom of information laws, after investigation, recently concluded that CRU broke those laws in refusing to respond to information requests.

EPA’s only reasonable course of action, Peabody argues, is to reopen the endangerment proceeding:

EPA has effectively delegated its judgment under section 202(a) of the CAA to an international body that acted contrary to basic U.S. standards of information quality, integrity and transparency. In the interests of good science and policy, and as required by law, EPA must now reconsider its Endangerment Finding in light of the CRU revelations. The importance of low-cost, reliable energy to the economy is too high for EPA to begin regulation based on such an uncertain foundation.

Debunking the Smear Campaign against the Murkowski Resolution

by Marlo Lewis on March 2, 2010 · 2 comments

in Global Warming

In recent weeks I have penned four columns debunking the smear campaign against Sen. Lisa Murkowski’s (R-AK) Congressional Review Act (CRA) resolution of disapproval to stop EPA from dealing itself into a position to make climate and energy policy for the nation — a power Congress never delegated to EPA when it enacted the Clean Air Act.

Climate Politics: When Will the Sanctimony End? (MasterResource.Org, Mar. 2) debunks the calumny that the Murkowski resolution is “polluter-crafted,” and shows that this pejorative accurately applies to the Waxman-Markey cap-and-trade bill — legislation that many Murkowski detractors such as Climate Progress and MoveOn.org enthusiastically support.

MoveOn’s Triple Whopper (Pajamas Media, Feb. 10) shows that MoveOn.org’s TV ad campaign against the Murkowski resolution piles falsehood on top of falsehood on top of falsehood. MoveOn claims the Murkowski resolution would “roll back” the Clean Air Act (it wouldn’t), making it harder for EPA to clean the air (it wouldn’t). We should all be in a panic , MoveOn suggests, because “many Americans smoke the equivalent of a pack a day just from breathing the air.” An outrageous falsehood. According to peer-reviewed scientific research, smoking just one cigarette a day delivers anywhere from 12 to 27 times the daily dose of fine particulate matter (PM2.5) that non-smokers inhale in cities with the highest PM2.5 levels.

The aforementioned piece and two others — Resolution Would Protect the Economy (National Journal, Jan. 27) and Move Afoot in the Senate to Can EPA CO2 Regs (Pajamas Media, Jan. 23) – clarify what the Murkowski resolution is and isn’t.

Contrary to Sen. Barbara Boxer (D-CA) and other critics, the resolution is not a referendum on EPA’s science. Rather, it is a referendum on the constitutional propriety of unelected bureaucrats, courts, and eco-litigation groups setting climate and energy policy for the nation. The resolution is not an attempt to veto the scientific content of EPA’s endangerment finding. Rather, it would veto the finding’s legal force and effect.

Thus, there is no valid analogy, as Sen. Boxer claims, between the Murkowski resolution and Congress vetoing the Surgeon General’s finding that cigaratte smoking causes cancer. The Surgeon General’s finding was simply that — an assessment of the scientific literature. It did not even presume to offer policy recommendations, much less trigger a host of new regulations Congress never approved, as EPA’s endangerment finding will do if allowed to stand.

The Obama Administration warns that the Murkowski resolution would thrust the distressed U.S. auto industry into regulatory limbo, because the endangerment finding is the trigger for the combined greenhouse gas/fuel economy standards rulemaking scheduled to go into effect later this month or early April.

The National Auto Dealers Association (NADA) respectfully disagrees. In this letter, released today, NADA argues the Murkowski resolution would benefit the auto industry because there would be one less redundant yet potentially conflicting standard (EPA’s) regulating fuel economy and GHG emissions from new motor vehicles.

I’ll have more to say about NADA’s analysis in a later post.

Moveon.Org’s Disinformation Smear Campaign

by Marlo Lewis on February 11, 2010 · 1 comment

in Global Warming

Moveon.Org is running a series of TV ads accusing Senators Blanche Lincoln (D-AR), Ben Nelson (D-NB), and Mary Landrieu (D-LA) of “working to roll back the Clean Air Act.” The ads tell the Senators to “Leave it [the Clean Air Act] alone,” because “Many Americans are already smoking the equivalent of a pack a day just from breathing the air.”

As I show here, Moveon’s attack ads are a triple whopper, piling falsehood upon falsehood upon falsehood.

(1) The Senators are not working to roll back the Clean Air Act. Rather, they are working to stop non-elected bureaucrats, trial lawyers, and activist judges from ‘enacting’ climate policies not authorized by the people’s elected representatives. It is the Senators’ defense of regulatory accountability — of democracy — that Moveon vilifies.

(2) Carbon dioxide (CO2) emissions do not form smog or soot, history demonstrates that we don’t need CO2 controls to clean the air, and EPA currently does not regulate CO2 emissions. Hence, it’s complete bunk that stopping EPA from setting climate policy for the nation ‘rolls back’ the Clean Air Act.  

(3) No American smokes the equivalent of a pack a day, or even one cigarette a day, just from breathing the air. Pope et al. (2009), a study published by the American Heart Association, finds that a pack-a-day smoker gets a daily dose of 140 to 240 milligrams of fine particulate matter (PM2.5), whereas a non-smoker living in a city with high PM2.5 levels inhales 0.44 to 0.56 milligrams per day. The pack-a-day smoker’s dose is hundreds of times greater. In fact, smoking just one cigarette delivers roughly 12 to 27 times as much PM2.5 into the lungs as does breathing the air in a city with high PM2.5 levels.

Moveon should promptly do three things: (1) Apologize to Sens. Lincoln, Nelson, and Landrieu for subjecting them to a smear campaign. (2) Apologize to their members for peddling disinformation. (3) Return every penny to anyone whom the ads angered or frightened into making a financial contribution.

Murkowski Resolution on Endangerment: Separating the Reality from the Spin

by Marlo Lewis on January 25, 2010 · 1 comment

in Global Warming, Legal

Last Thursday, Sen. Lisa Murkowski (R-AK), ranking member of the Senate Energy and Natural Resources Committee, introduced a resolution of disapproval, under the Congressional Review Act (CRA), to overturn EPA’s endangerment finding. Murkowski’s floor statement and a press release are available here.

As you’d expect, Sen. Barbara Boxer (D-CA) and other apostles of Gorethodoxy were quick to condemn the resolution as an attack on the Clean Air Act, science, public health, and the children.

Rubbish!

At a press conference she organized on the same day the resolution was introduced, Boxer and others tried to spin the Murkowski resolution as a referendum on science – as if Congress, King Canute-fashion, could alter the results of scientific research.  

A strong case can be made that the endangerment finding is scientifically-challenged. But that’s not what the Murkowski resolution is about.

As the Senator made clear in her floor statement, and as you can see from the text, the resolution is a referendum on the propriety of EPA taking control of the economy without so much as a by-your-leave from the people’s elected representatives. The Murkowski resolution vetoes the endangerment finding’s regulatory force and legal effect, not its intellectual content.

EPA’s endangerment finding, as I explain in this column on Pajamas Media, would launch an era of runaway regulation without representation. The Murkowski resolution is a gutsy action to safeguard the economy, government’s accountability to the people, and the separation of powers under the Constitution.

Will Cass Sunstein stick up for small business, or bless EPA’s legal hair splitting?

by Marlo Lewis on January 21, 2010 · 3 comments

in Energy, Global Warming

Today, Reps. Lamar Smith (R-TX), Sam Graves (R-MO), Trent Franks (R-AZ), and Lynn Westmoreland (R-GA) sent a letter to Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein sharply critical of EPA’s December 7, 2009 finding that “air pollution” from carbon dioxide (CO2) and other greenhouse gases (GHGs) endangers public health and welfare. 

“On the basis of EPA’s endangerment finding,” the legislators warn, “virtually every economic activity undertaken in America stands to come under the thumb of federal regulation.” They explain: “These actions begin with EPA’s and the Department of Transportation’s proposed new light vehicle emission standards, continue through greenhouse gas (GHG) preconstruction and operating permit requirements for stationary sources and extend as far as the mind can contemplate.” They continue: “In these ways, EPA threatens to burden our economy with vastly expanded regulation not contemplated by Congress when it passed the Clean Air Act.” 

Yes, indeed. As I discuss here and here, EPA’s endangerment finding starts a regulatory cascade that could (1) subject tens of thousands of previously unregulated small businesses to Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) pre-construction permitting regulations, (2) subject millions of small businesses to CAA Title V operating permit requirements, and (3) compel EPA to establish national ambient air quality standards (NAAQS) that would effectively require the United States to de-industrialize. The Supreme Court pushed EPA to make the endangerment finding in its April 2007 Massachusetts v. EPA decision.

The four Members of Congress ask OIRA chief Sunstein to make EPA convene a Small Business Advocacy Review Panel to develop and evaluate regulatory alternatives to mimimize the endangerment finding’s impacts on small business. Until and unless EPA does this, the lawmakers say, the endangerment finding should be “withdrawn.”

The representatives acknowledge that EPA’s proposed October 2009 Tailoring Rule  “seeks to delay for a handful of years the imposition of requirements on sources emitting less than 25,000 tons of carbon dioxide per year.” However, this fix is by design temporary, and it is legally dubious, since EPA would be flouting clear statutory language. Under the CAA, entities must obtain a PSD permit in order to construct or modify a facility with a potential to emit 250 tons per year of a CAA-regulated air pollutant, and a Title V permit in order to operate a facility with a potential to emit 100 tons per year.

EPA estimates that if these provisions are enforced as written, the number of entities applying for PSD permits would jump from 280 to 41,000 per year, and the number applying for Title V permits would jump from 14,700 to 6.1 million per year. The flood of permit applications would overwhelm agency administrative resources, the permitting programs would implode under their own weight, construction activity would grind to a halt, and millions of firms would find themselves in legal limbo — all in the midst of the worst economic downturn since the Great Depression.  

It will be interesting to see how Sunstein responds to the lawmakers’ letter. Will he stick up for small business and honor the spirit of the Regulatory Flexibility Act (RFA), or will he bless EPA’s evasive legal semantics? 

Under the RFA, agencies are to convene a small business review panel unless the agency head certifies that the proposed regulation will not have a “significant impact upon a substantial number of small entities.”  In a recent year, each PSD permit on average cost $125,120 and 866 burden hours for sources to obtain (just the paperwork and administrative costs, exclusive of any associated technology investments). The going rate for Title V administrative fees is $43.75 per ton, implying a virtual carbon tax (exclusive of administrative expenses) of $4,375 for a small business emitting 100 tons of CO2 per year. The Tailoring Rule estimates (p. 55338) that if small sources of CO2 must comply with the law as written, rather than as doctored by EPA, they will incur an expense of more than $38 billion just for Title V compliance over the next six years.  A significant economic impact by any standard.

Note also that the $38 billion figure refers just to the direct expenses small firms would incur to comply with Title V. It does not include the reduced output and job losses due to the diversion of resources to regulatory compliance. Nor does it include the loss of investment in firms that, due to their sheer number, face years of delay and uncertainty in obtaining permits to build or operate their facilities.

The endangerment finding is what tees up all these costs and consequences, so you’d think it would be a no brainer that it has ”significant impact upon a substantial number of small entities.”

Well, EPA says otherwise. In the Endangerment Finding (p. 66545), Administrator Lisa Jackson certifies that EPA’s findings “do not in-and-of-themselves” impose new requirements on small entities. Hence, there’s no need for an RFA review panel. Similarly, EPA’s GHG motor vehicle standards proposal (p. 49628) certifies that it would not have a significant impact on a substantial number of small entities, since the standards would apply to automakers, very few of which are small businesses.

By making new cars more costly, however, the rule could adversely affect thousands of auto dealers, most of whom are small businesses. EPA says not a word about that potential impact. More importantly, the GHG motor vehicle standards are what directly trigger the PSD and Title V requirements.

EPA says the Tailoring Rule (p. 55349) won’t have a significant impact on a substantial number of small entities, because it “will relieve the regulatory burden associated the PSD and Title V operating programs for new and modified major sources that emit GHGs, including small businesses.” So EPA acknowledges there is a burden to be relieved — a PSD/Title V burden. Where does that come from?  The endangerment finding and the GHG motor vehicle emissions rule. Yet EPA claims those actions have no impact of any consequence for small business.   

Isn’t legal hair-splitting grand? Of course, the findings “in-and-0f-themselves” regulate nothing — but they compel the adoption of GHG motor vehicle standards under CAA Sec. 202, which then automatically trigger pre-construction permitting requirements under Secs. 160-160 and operating permit requirements under Secs. 501-507.

The endangerment finding also sets the stage for regulation of GHG emissions from motor fuels under CAA Sec. 211, non-road engines and vehicles under Sec. 231, the establishment of GHG new source performance standards (NSPS) for scores of industrial source categories under Sec. 111, and the establishment of economy-wide NAAQS regulation of GHGs under Secs. 107-110.  ”Yes, Your Honor, I pulled the trigger, but I am innocent; the bullet killed the man!”

And if litigation and the logic of the CAA compel EPA to establish NAAQS for CO2 and other GHGs, which could easily qualify as the most expensive rulemaking in history, you can bet your bottom dollar what EPA will say. There’s no significant impact on a substantial number of small businesses, because NAAQS “in-and-of-themselves” don’t regulate anybody. The actual regulation of businesses large and small will be done by the states, through their State Implementation Plans (SIPs). “Once the rockets are up who cares where they come down, that’s not my department,” says Wernher Von Braun.

Small business clearly needs an advocate in the room and at the table whenever EPA deliberates about any regulatory action pertaining to greenhouse gases and CO2. Congress enacted the RFA to protect small business from regulatory excess. Right now it’s not working. Cass Sunstein has an opportunity to ensure that small businesses have a say in regulatory decisions affecting their very survival. He should seize it.

EPA’s Tailoring Rule: A Temporary, Legally Dubious, and Incomplete Antidote to Massachusetts v. EPA’s Legacy of Absurd Results

by Marlo Lewis on December 28, 2009 · 1 comment

in Global Warming, Legal

Today, I submitted a comment on EPA’s proposed Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule.  The gist of my argument is as follows:

In Massachusetts v. EPA, the Supreme Court legislated from the bench, authorizing and indeed pushing EPA to control emissions of greenhouse gases (GHGs) for climate change purposes. This is a policy decision of immense economic and political magnitude that Congress never intended or approved when it enacted and amended the Clean Air Act (CAA or Act).

Regulating GHGs under the CAA leads inexorably to “absurd results,” including an economically-chilling administrative quagmire. To prevent GHG regulation from overwhelming agency administrative resources and stifling economic development, EPA proposes to suspend, for six years, the “major” source applicability thresholds for the CAA pre-construction and operating permits programs. That is, EPA proposes to amend the Act. This violation of the separation of powers compounds the constitutional crisis inherent in the Court’s substitution of its will for that of the people’s elected representatives.

The small-business protections proposed in the Tailoring Rule are temporary, legally dubious, and incomplete. Even if courts uphold the Tailoring Rule, despite its flouting of clear statutory language, it will not avert the most absurd result of the Court’s misreading of the CAA:  regulation of carbon dioxide (CO2) and other greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program.

EPA runs enormous political risks leading the charge for GHG regulations not approved by Congress. It is in the Agency’s best interest not to oppose legislative action to overturn the endangerment finding and Mass. v. EPA.

The full text of my comment is available here.

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