The increase in the concentration of greenhouse gases in the atmosphere, blamed for global climate change, comes from a wide variety of sources around the world. Addressing that global issue requires a national and international response, however, the Clean Air Act was enacted to control pollutants on a local and regional scale that cause direct health and environmental effects. First passed in 1970, and most recently amended in 1990, it contains a wide range of tools for the Environmental Protection Agency to use to reduce those pollutants and improve local and regional air quality. In most cases, state environmental departments have the primary responsibility for implementing the Clean Air Act’s requirements specifically because it was designed and intended to address local and regional pollution issues.

In 2007, the U.S. Supreme Court determined that the definition of “pollutant” in the Clean Air Act includes emissions of greenhouse gases. It then directed the EPA to determine whether emissions of these gases from new automobiles “endangered” public health and welfare, and therefore should be regulated. The Court did not impose any deadlines on the EPA or mandate that the EPA regulate greenhouse gases. It also did not address regulating emissions from stationary sources.

The Court decision caused the EPA to issue an “endangerment finding,” in which the agency determined that,
“The current and projected concentrations of the six key well-mixed greenhouse gases – carbon dioxide (CO2 ), methane (CH4 ), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6 ) in the atmosphere threaten the public health and welfare of current and future generations.”

This finding opened the door to using the Clean Air Act to regulate greenhouse gases from motor vehicles, and in April the EPA finalized regulations that will begin to do just that when they become effective in 2011. Unfortunately, these motor-vehicle regulations will automatically trigger other regulatory requirements that will affect stationary sources, including power plants and industrial facilities.

The most immediate concern is that a program called Prevention of Significant Deterioration will be put into motion. Prevention of Significant Deterioration requires extensive analysis of the impacts of any new or modified sources in order to receive a preconstruction permit. Generally, the Clean Air Act sets a statutory threshold of 250 tons per year of any pollutant as the basis for when Prevention of Significant Deterioration applies. Therefore, any facility capable of emitting more than 250 tons/year is subject to Prevention of Significant Deterioration requirements for new or modified sources. If applied to greenhouse gases, especially carbon dioxide, this would affect potentially millions of sources, and even small commercial or industrial facilities would be required to get the same permit as a new power plant.

The EPA, in an effort to avoid a permitting nightmare and not have the Prevention of Significant Deterioration program apply to hundreds of thousands of small sources, has proposed its greenhouse gas “Tailoring Rule.” The rule, as proposed, would apply Prevention of Significant Deterioration requirements only to sources emitting more than 25,000 tons per year of carbon dioxide or other gases with an equivalent warming potential.

Earlier this spring, EPA Administrator Lisa Jackson indicated the agency is likely to raise the threshold to 75,000 tons when it finalizes the rule in the coming weeks.

It is unclear whether or not this rule will actually protect “small emitters” because many states have their own laws or regulations setting 250 tons per year as the threshold for when Prevention of Significant Deterioration applies. Those laws would not automatically change just because the EPA attempted to change the threshold. Further, interest groups will oppose the EPA’s plans to minimize the adverse impacts. Future court decisions could result in unwanted mandates for less efficient and more costly regulation.

The concerns about the use of inappropriate regulatory tools designed for other environmental purposes don’t stop with the Prevention of Significant Deterioration program. There are several other Clean Air Act provisions the EPA could use, or be forced to use through the courts, to regulate greenhouse gases. Some examples include New Source Performance Standards and National Ambient Air Quality Standards.

The National Rural Electric Cooperative Association’s position is that the Clean Air Act is the wrong tool for the job of addressing climate change, and Congress should step in. If the automobile industry and the EPA agree that the Clean Air Act is useful in addressing climate change concerns for that sector, the National Rural Electric Cooperative Association has no objection to using the Clean Air Act to address motor-vehicle emissions specifically. However, we are very concerned about the automatic impacts such regulations could have on stationary sources. The National Rural Electric Cooperative Association would prefer a legislative solution that severs the provisions affecting stationary sources of emissions from the provisions and regulations governing motor vehicles. Several members of the House and Senate have introduced, or are developing, proposals to limit the use of the Clean Air Act to regulate carbon emissions and other greenhouse-gas emissions.

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