EPA Urged to Regulate GHG Emissions of Existing Sources Through Seldom-Used CAA Section

A think tank affiliated with the New York University School of Law is urging the Environmental Protection Agency (EPA) to mandate cuts of greenhouse gas (GHG) emissions in all 50 U.S. states through a little-used section of the Clean Air Act.

The Institute for Policy Integrity submitted a petition to initiate GHG emission rulemaking proceedings to the federal agency on Tuesday, saying that if the EPA ignored or denied the petition, it would "pursue appropriate legal action to force the agency to respond."

The petition essentially requests that the EPA take required actions under Section 115, Title VI (Section 615), Section 111, and Title II of the Clean Air Act to control GHG emissions. Section 115 creates a "mandatory duty for EPA to respond to U.S. emissions that endanger public health and welfare in foreign countries," the petition says. The agency had already acknowledged (in a report from the Intergovernmental Panel on Climate Change) that GHGs from the U.S. endanger foreign countries, the think tank said, so it was the EPA’s duty to require states to revise their Clean Air Act implementation plans to control GHG pollution by "making reasonable progress toward abatement." The EPA should also advise states on their options for implementation under Section 115, including flexible regulatory tools like markets, it said.

According to the institute, the legal threshold "requiring EPA action has been met and surpassed; as both the Intergovernmental Panel on Climate Change and EPA have already acknowledged, U.S. emissions contribute significantly to global greenhouse gas concentrations, which will likely impact extreme weather events, food production, infectious disease, water scarcity, coastal erosion, and economic development across every continent."

Title VI of the Clean Air Act—specifically Section 615—could also potentially obligate the EPA to establish comprehensive control of GHG emissions, the institute says. "Under Section 615, EPA must control pollution that affects the stratosphere and so impacts public health and welfare. Scientific evidence already supports the conclusion that greenhouse gases are affecting the stratosphere in ways that endanger the public, particularly by contributing to ozone depletion."

But the EPA would need to collect additional information before making a formal endangerment finding under Section 615, the institute said. It urged the agency to initiate a public call for information under Title VI regarding the effects of GHGs and ozone on the stratosphere. If scientific evidence exists and an endangerment finding is made, the EPA could control GHG emissions through flexible regulatory tools like markets, it advised.

The agency has already begun the process of regulating power plants for their GHG emissions under Section 111 of the Clean Air Act. Section 111 requires the agency to regulate categories of stationary sources that significantly contribute to air pollution, which may endanger public health or welfare.

Former EPA Administrator Lisa Jackson in December 2009 signed a final action, under Section 202(a) of the Clean Air Act, finding that six key well-mixed GHGs constitute a threat to public health and welfare. On May 13, 2010, the EPA set GHG emissions thresholds to define when permits under the New Source Review Prevention of Significant Deterioration and Title V Operating Permit programs are required for new and existing industrial facilities. And on March 27, 2012, the agency proposed a Carbon Pollution Standard for New Power Plants that would, for the first time, set national limits on the amount of carbon pollution that new power plants can emit. That rule is set to be finalized this April.

The institute on Tuesday called on the EPA not only to promptly finalize that rule but also to promulgate GHG rules for existing power plants. It should instruct states to develop performance standards for existing sources, coordinating with the agency’s proposed new source performance standards "to avoid grandfathering." It also urged the agency to define "a market" as the "best system" of control for both new and existing sources.

Disputes about the validity of climate change science have widened a chasm between Democratic and Republican lawmakers on if and how the nation should regulate GHGs. A briefing by four scientists on climate science at the Senate Environment and Public Works Committee on Feb. 13 was attended by several Democrats—but no Republicans.

Meanwhile, on Friday, days before the institute submitted its petition, the EPA found in a final science assessment evidence that short-term exposure to ozone could have a negative impact on respiratory health. It also uncovered evidence in research that suggests a relationship between short-term exposure to ozone, cardiovascular effects, and death.

Sources: POWERnews, NYU’s Institute for Policy Integrity, EPA

—Sonal Patel, Senior Writer (@POWERmagazine)