In Part 2 of ‘Endangerment 101,' we tackle the so-called "
Tailoring Rule" (TR). What is it? That's a timely question, and the answer lies at the heart of the endangerment finding. The TR was unconsciously conceived on April 2, 2007, when the Supreme Court ruled on
Massachusetts v. EPA. In that opinion, one searches in vain for any hints that the majority understood the regulatory maelstrom that inexorably ensues once endangerment is triggered.
Though EPA's "Endangerment and Cause or Contribute Findings" concern "new motor vehicles" and "new motor vehicle engines" (pursuant to
Section 202(a) of the Clean Air Act), once CO2 becomes a pollutant "subject to regulation" under the CAA, EPA's regulatory reach extends well beyond cars to stationary sources-an inevitability apparently lost on the Massachusetts 5-and hence creates the economic and administrative necessity for the TR.
EPA will lord over the usual suspects-e.g., power plants, refineries, cement kilns, and other large manufacturing facilities. Any "major source" that falls into one of 28 categories and has the potential to emit 100 tons per year of CO2, or other establishments with the potential to emit 250 tons per year, will be covered. Those levels, mind you, are significant for such traditional pollutants as sulfur dioxide and nitrogen oxides. But not for CO2-and that's why if one builds or makes major modifications to nursing homes, schools, farms, big box stores, commercial buildings, or restaurants, to name a few, one will be forced to obtain (
Prevention of Significant Deterioration) preconstruction and (
Title V) operating permits from EPA or state permitting authorities. This "
absurd result"-to use the legal term of art employed by EPA-makes manifestly clear that the CAA was never intended to regulate greenhouse gases, and it's why, among many other reasons, the Massachusetts decision was such a legal travesty.
Hundreds of thousands of sources will thus be swept into the ambit of the CAA. The already-soft economy will labor under the added weight of EPA's regulatory dragnet. And it will create an administrative nightmare to boot. EPA estimates that
PSD permit applications could jump from roughly 280 to 41,000 per year-more than a 140-fold increase. In addition, Title V permit applications would grow from 14,700 to 6.1 million per year-a 400 fold increase. The "enormous numbers of permit applications" would "vastly exceed the current administrative resources of permitting authorities."
Enter the TR. To get around the aforementioned unpleasantness, EPA concocted a novel-and some believe prima facie illegal-approach: simply defenestrate the CAA's express 100 and 250 ton levels and exempt all sources emitting less than 25,000 tons per year of CO2 from CAA permitting requirements. As EPA explained,
"[The Tailoring Rule] is necessary because EPA expects soon to promulgate regulations under the CAA to control GHG emissions from light-duty motor vehicles and, as a result, trigger PSD and title V applicability requirements for GHG emissions. When the light-duty vehicle rule is finalized, the GHGs subject to regulation under that rule would become immediately subject to regulation under the PSD program, meaning that from that point forward, prior to constructing any new major source or major modifications that would increase GHGs, a source owner would need to apply for, and a permitting authority would need to issue, a permit under the PSD program that addresses these increases."
EPA goes on to state that "if PSD and title V requirements apply at the applicability levels provided under the CAA, many small sources would be burdened by the costs of individualized PSD control technology requirements and
permit applications".
We applaud EPA for seeking redress from the horrors of the endangerment finding. Yet this whole business could have been avoided had it not made the finding in the first place (the science simply doesn't justify it). Not to mention that the TR is a green nostrum-it won't solve the "small source problem"- that more than likely won't survive legal challenge. More on that in the days to come.
