The Context
In 2009, EPA had a decision to make on greenhouse gases. They had to decide whether or not greenhouse gases, such as carbon dioxide, endanger public health and welfare and therefore need to be regulated using the Clean Air Act. At the time
, IER and other groups warned EPA that Congress never intended EPA to regulate greenhouse gases. We warned EPA that if they went forward, the Clean Air Act would
require EPA to not only regulate large sources of carbon dioxide emissions, but also 260,000 office buildings, 150,000 warehouses, 100,000 schools, 92,000 health care facilities, 58,000 food service buildings, 37,000 churches, 26,000 places of public assembly, and 17,000 farms. IER argued that these regulations would be incredibly expensive, that the regulations would be required by law, and that Congress never intended to regulate greenhouse gases from these, or any other sources, with the Clean Air Act.
EPA did not take our advice and instead started regulating greenhouse gases. To try to get around the law, EPA came up with two rules to try to explain why it was avoiding what the law required. The first is commonly referred to as the "timing decision," with the official title of "Reconsideration of Interpretation of Regulations that
Determine Pollutants Covered by Clean Air Act Permitting Programs," 75 Fed. Reg. 17,004 (April 2, 2010).
The second is known as the "tailoring rule," or more officially, "Prevention of Significant Deterioration [PSD] and Title V Greenhouse Gas Tailoring Rule," 75 Fed. Reg. 31,514 (June 3, 2010).
The tailoring rule in particular is an obvious attempt by EPA to not regulate smaller sources of carbon dioxide emissions, despite what the law states. In the tailoring rule, EPA states that it couldn't follow the plain text of the law because that would lead to "absurd results." At the time, we argued that EPA was getting it backwards. The reason following the law would lead to "absurd results" is because Congress never intended EPA to regulate greenhouse gases in the first place. It should not be surprising that by construing carbon dioxide as a "pollutant"--something that would have seemed absurd to the Congress that passed the Clean Air Act--our modern-day EPA would end up in absurdity.
EPA is now in court because they aren't doing what the Clean Air Act requires. There are several aspects to the challenges, involving not only economic and environmental facts but also issues of legal jurisdiction. In the present post, we'll concentrate on the sheer size and absurdity of the regulatory burdens of the EPA's announced position,
using the EPA's own brief as our source.
Be Careful What You Wish For
On pages 48-49 of the EPA's brief, EPA admits what we told them two years ago--that under their current stance, the Clean Air Act forces EPA to regulate tens of thousands of carbon dioxide sources and that doing so will be incredibly expensive. Here's what EPA's brief says:
EPA studied and considered the breadth and depth of the projected administrative burdens in the Tailoring Rule. There, EPA explained that immediately applying the literal PSD statutory threshold of 100/250 tpy to greenhouse gas emissions, when coupled with the "any increase" trigger for modifications...
would result in annual PSD permit applications submitted to State and local permitting agencies to increase nationwide from 280 to over 81,000 per year, a 300-fold increase...Following a comprehensive analysis, EPA estimated that these additional PSD permit applications would require State permitting authorities to add 10,000 full-time employees and incur additional costs of $1.5 billion per year just to process these applications, a 130-fold increase in the costs to States of administering the PSD program...
Sources needing operating permits would jump from 14,700 to 6.1 million as a result of application of Title V to greenhouse gases, a 400-fold increase....Hiring the 230,000 full-time employees necessary to produce the 1.4 billion work hours required to address the actual increase in permitting functions would result in an increase in Title V administration costs of $21 billion per year. [Bold added.]
These are astounding figures. And remember--
these are the government's costs in handling the new paperwork. The above estimates do NOT take into account the economic burden on the people who would be affected by the rules--building owners, hospitals, large nursing homes, large churches, as well as industry and regular consumers. But EPA's argument here is that it's really, really expensive and difficult to follow the law, therefore, EPA should not be forced to follow the law. We would like to remind EPA that we told them that this was the foreseeable outcome two years ago when they decided to regulate greenhouse gases.
EPA Is Reasonable?
The defender of the EPA might object, arguing that the purpose of the timing and tailoring rules is to mitigate the immediate impact of the new burden. So why are people still complaining? EPA recognized the absurdity of a brute-force application of the law, and so will exempt itself for a while.
But wait just a moment. Here's where EPA states that it will move ahead with its plans to regulate millions of emitters of carbon dioxide (e.g. buildings, hospitals, churches, etc.), even though the administrative costs might still be prohibitively high in 2016. From page 83 of the brief:
While EPA acknowledges that come 2016, the administrative burdens may still be so great that compliance at the 100/250 tpy level may still be absurd or impossible to administer at that time, that does not mean that the Agency is not moving toward the statutory thresholds. To the contrary, through this regulatory process "EPA intends to require full compliance with the CAA applicability provisions of the PSD and Title V programs..."...(explaining that EPA will implement the tailored approach "by applying PSD and Title V at threshold levels that are as close to the statutory levels as possible, and do so as quickly as possible...").
EPA admits that it is "absurd or impossible" to follow the law. That should give EPA and the courts pause. It if is "absurd or impossible" to follow the law, maybe that's because Congress never intended EPA to regulate greenhouse gases in the first place. That's the most obvious conclusion.
Conclusion
The EPA's latest brief is yet another example of the Kafka-esque world in which Americans now find themselves. When the Clean Air Act was passed, nobody would have possibly thought it would one day be used to regulate the emission of carbon dioxide--what plants breathe!--as a pollutant harmful to human health. The very notion would have struck most Americans as absurd--and indeed the EPA's analysis confirms that intuition.
It seems that the only thing preventing the enforcement of absolute absurdity right now is the government recognizing that it
itself wouldn't be able to keep up with its own paperwork. That is small reassurance indeed. With private investment stalled and unemployment unacceptably high, the American economy needs regulatory certainty and lower energy prices, not ever more constraints and hurdles placed on businesses.
