Some may recall the inconvenient fact that arose out of EPA's recent finding that greenhouse gases from mobile sources "endanger" public health and welfare. To wit: once a "pollutant," such as CO2, becomes "subject to regulation" under the Clean Air Act, any major stationary source that emits-or has the potential to emit-more than 100 or 250 tons of CO2 must obtain a costly, time-consuming "preconstruction permit" from EPA.
Want to build a school, hospital, office building, or nursing home? What about a Wal-Mart or a Safeway? Forget it, unless you get a
Prevention of Significant Deterioration, or PSD, permit from EPA, which requires that the school, or whatever's being built or modified, install best available control technology (BACT) to limit GHG emissions. (Of course what constitutes BACT for GHGs is an open question, which only adds to the uncertainty and confusion arising from EPA's ever-expanding GHG regime.)
Under the tailoring rule, if a new source emits less than 100,000 tons of GHGs per year, it is exempt from PSD requirements, though the exemption extends only to 2016, at which point EPA will decide whether to regulate such sources. As for modifications to existing facilities, EPA exempts those that fall under 75,000 tons per year. EPA also says it may permanently exempt from permitting requirements sources that emit less than 50,000 tons per year.
EPA calls this a "common-sense approach." It may very well be. But common sense cannot trump the fact that the 100,000-ton threshold contravenes the clear 100-250-ton limit in the CAA. EPA says no matter, and claims the higher threshold is justified by, among other things, the demands of "administrative necessity"-processing thousands of permits would overwhelm state permitting agencies-and the doctrine of "absurd results"-e.g., installing BACT at the local Dunkin Donuts.
To be sure, EPA's legal basis for the tailoring rule will be tested in court. The suits will go directly to the DC Circuit Court of Appeals. And if you want a sneak peek into the DC Circuit's take on the boundaries of EPA's discretion in interpreting statutes, one need only turn to Judge David Tatel.
Last October, Judge Tatel, a Clinton appointee,
delivered a little-noticed speech to the Environmental Law Institute. In his remarks, Tatel issued a direct warning to EPA: follow the law. Judge Tatel noted that "you'd be surprised how often agencies don't seem to have given their authorizing statutes so much as quick skim." To illustrate his point, he cited a case of EPA's erroneous reading of the Clean Water Act. EPA, he said, ran afoul of the act's requirement that to establish "total maximum daily loads" for certain fluid discharges. Here's Tatel in full:
EPA believed that this allowed it to establish not total maximum daily loads, but total maximum seasonal or annual loads instead. Defending its interpretation, EPA argued that it could better regulate certain pollutants on a seasonal or annual basis than through daily maximum loads. For all I know, EPA was right. But Congress had not allowed it to make that decision. In no uncertain terms, Congress had directed EPA to issue regulations setting the maximum load that could be discharged not annually, not seasonally, but daily. EPA's decision to ignore the statute's plain words rather than returning to Congress for authority to pursue its preferred policy still baffles me. [Emphasis added]
Tatel's opinion in that case (Friends of the Earth v. EPA) is even more emphatic:
The district court found EPA's contextual and policy arguments sufficiently persuasive to disregard the plain meaning of "daily," but we do not. Daily means daily, nothing else. If EPA believes using daily loads for certain types of pollutants has undesirable consequences, then it must either amend its regulation designating all pollutants as "suitable" for daily loads or take its concerns to Congress.
As for the CAA, Congress was clear, and making exceptions for GHGs can't be sustained unless Congress changes the law. As Judge Tatel observed, "the 'New EPA' that you are discussing today may have excellent programs it is eager to execute. But those programs will be legitimate-and will be sustained in court-only if their implementation conforms to the rule of law."
To put it mildly, the fate of the tailoring rule in the DC Circuit appears bleak. Put simply, no matter what the legal outcome, Congress must overturn the endangerment finding and stop EPA from regulating GHGs altogether under the CAA.
