Jackson Issues GHG Regulation Timeline, Defends Endangerment Finding

Environmental Protection Agency (EPA) Administrator Lisa Jackson defended the science behind the agency’s so-called “endangerment finding” at a Senate hearing on Tuesday—the day after she told coal-state lawmakers that the agency could begin phasing in permit requirements controlling greenhouse gases emitted by large stationary sources beginning in 2011.

Jackson on Monday said in a letter (PDF) that she would act, by April, to ensure that no stationary sources would be required to get a Clean Air Act permit to cover greenhouse gas (GHG) emissions in 2010, but that regulations for large stationary sources would likely begin in 2011. Jackson was responding to a letter (PDF) sent to her on Friday by Sen. John Rockefeller (D-W.Va.) and seven other senators from coal states.

“In the first half of 2011, only those facilities [fewer than 400] that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications,” she wrote. “Further, I am expecting that greenhouse gas emissions from other large sources will phase in starting in the latter half of 2011. 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.”

Jackson wrote that the EPA was obligated to treat GHG emissions as “air pollution” under the Clean Air Act and to “engage with the best available science” in determining whether those emissions endangered public health and welfare per the U.S. Supreme Court’s landmark decision in Massachusetts v. EPA (2007).

The agency’s December 2009 “endangerment” finding—a formal declaration that GHGs pose health and welfare threats—was made only after the EPA had conducted a “comprehensive survey of the soundest available science and carefully reviewed hundreds of thousands of public comments,” she said. She also said that the conclusion had not been reached by the EPA alone, pointing to several other government departments and to the U.S. Senate.

Now the agency was preparing to issue, as obligated by the endangerment finding, GHG standards for light-duty motor vehicles (models 2012–2016), by late next month, she wrote. At the same time, it was looking to put into law the proposed PSD (prevention of significant deterioration) and Title V GHG Tailoring Rule. If enacted, those regulations would require facilities emitting more than 25,000 tons of GHGs a year to obtain permits and demonstrate they were using the “best practices and technologies to minimize GHG emissions.”

The agency wouldn’t target small emitters until at least 2016, she said.

Addressing the BACT Question

GHG regulations on coal- and natural gas–burning facilities under the Clean Air Act would require definition of a “Best Available Control Technology” (BACT)—but none exists, as carbon capture and sequestration (CCS) is still in developmental stages. Asked directly by lawmakers how the EPA would go about determining such standards, Jackson said that the agency would apply the “well-developed framework” that exists for determining BACT for non-GHG pollutants, and that it was continuing to “review and analyze options” to identify “practical, achievable, and cost-effective strategies.”

“The additional time that EPA will have before permitting requirements will take effect will enable the agency and stakeholders to consider this issue carefully and thoughtfully,” she said. She added, however, that the agency was “closely” following efforts to make CCS commercially available, and that the agency “would expect to carefully consider the state of development of this technology in considering options for BACT.”

A Surge of Legal Challenges

The Tailoring Rule would survive legal challenges by a host of business groups, Jackson wrote. “My assessment is that those challenges, if they are filed, will fail. If my assessment were otherwise, I would not promulgate the [Tailoring Rule].”

Jackson did not comment on the 17 petitions for review filed against the agency’s endangerment finding at the U.S. Circuit Court of Appeals for the District of Columbia. by the Feb. 16 deadline. Petitioners include three states—Alabama, Texas, and Virginia—that argue that the endangerment finding would result in excessively burdensome regulations that would harm the states’ economies.

Challenges were also filed by the Southeastern Legal Foundation (SLF)—a suit that includes 13 U.S. House Republicans from six different states and 16 private companies and associations. Others include the American Farm Bureau, the U.S. Chamber of Commerce, the Competitive Enterprise Institute, the Utility Air Regulatory Group, and a variety of other industry entities. A coalition of 16 states and New York City is asking for permission to intervene in the suits on behalf of the EPA. The appeals court is likely to consolidate the 17 suits into one big case.

The EPA chief did, however, say that an effort by Sen. Lisa Murkowski (R-Alaska) to block the EPA from regulating GHGs would undo a deal struck last year between the auto industry, the Obama administration, and several states to limit GHGs from vehicles.

Murkowski reportedly intends to call for a floor vote of a resolution (S.J. Res 26) disapproving of the EPA’s finding. If it passes, the resolution could remove the EPA’s authority to regulate GHG emissions unless and until Congress reinstates that authority. Forty-two senators have so far publicly stated support for the resolution.

On Monday, Murkowski praised the letter sent to Jackson by the eight coal-state senators, saying that Congress was the proper body to address climate policy. “Until the specter of command-and-control regulations goes away, it will remain a counterproductive threat hanging over the work that must be done to find common ground,” she said.

“Fortunately, the Congressional Review Act provides a small window of opportunity for Congress to disapprove of EPA’s finding. The disapproval resolution remains the best opportunity for senators to weigh in, prior to EPA regulating, on whether or not they are comfortable with EPA instituting massive new regulations in the midst of the worst economic downturn in modern times,” said Murkowski.

“It is a simple issue: Senators either support EPA imposing these regulations without input from Congress, or they don’t.”

Defending the Science Behind Climate Regulations

On Tuesday, during a hearing at the Senate Environment and Public Works (EPW) Committee held to scrutinize President Obama’s $10 billion budget request for the EPA, Senate Republicans jumped on the opportunity to ask pointed questions regarding the science behind the agency’s pending regulations.

Committee Republicans had on that day released a report titled “ ‘Consensus’ Exposed: The CRU Controversy,” which details the controversy surrounding e-mails and documents released from the University of East Anglia’s Climatic Research Unit (CRU). The e-mails reportedly discussed efforts to prevent certain research from being considered by the Intergovernmental Panel on Climate Change and to “hide” declining temperature trends from tree ring data that were contradicted by rising thermometer measurements. Climate change skeptics contend the messages are evidence that scientists have falsified data to exaggerate the threat of global warming.

The administration’s fiscal 2011 proposal (PDF) seeks to cut the agency’s total funding by about $300 million from 2010 levels. But it designates some $56 million—$43 million in new funding—for regulatory programs to control GHG emissions. Requested funds include $25 million to aid states in GHG permitting activities under the New Source Review and Title V operating permits programs. The budget also requests $7 million to develop New Source Performance Standards to control GHG emissions from a few categories of major stationary sources.

Ranking minority member Sen. James Inhofe (R-Okla.) lambasted the $43 million in new funding as “seed money for the most economically destructive regulatory initiative in this nation’s history.”

“EPA accepted the IPCC’s erroneous claims wholesale, without doing its own independent review,” he added. “So EPA’s endangerment finding rests on bad science.”

Pointing out that the endangerment finding was based “in large part” on scientific efforts by the Bush administration to determine whether or not GHGs endangered public health and welfare, Jackson told the committee: “The science behind climate change is settled, and human activity is responsible for global warming. That conclusion is not a partisan one.”

Pressing Forward with CAIR

Pressed by the committee to set down a tentative timeline as to when the EPA would propose a Clean Air Interstate Rule (CAIR)—a cap-and-trade program for controlling fine particulates and smog-causing emissions—Jackson said that the agency hoped to finalize one soon. “Hopefully in the coming months, earlier in the year, not later in the year, because we are without a way to protect against interstate transport,” she said.

Sources: POWERnews, EPA, Senate Environment and Public Works Committee, Sen. John Rockefeller, Sen. Lisa Murkowski