To understand such strangeness, one must know that EPA is acting desperately in hopes of avoiding the "
glorious mess" that regulating GHGs will surely create. As a means to that end, the agency recently proposed a "SIP" (State Implementation Plan) call for states whose laws and/or regulations are deemed deficient in that they don't authorize GHG regulation. EPA has granted states one year to correct those deficiencies; EPA in the meantime would become the backstop GHG permitting authority--permanently so, if states refuse to make the necessary changes.
EPA claims that federalizing PSD and Title V will expedite permitting, though it acknowledges, in remarkable understatement, that "questions may arise" as to how it might work. We suspect some states will view surrendering their permitting authority to EPA as distasteful. To avoid that, some states will no doubt press ahead to change their laws. But in doing so, they could encounter difficulties (opposition, delay, lawsuits, etc.). No matter, EPA has the solution: it's all a matter of interpretation.
That is, if states find they can't change their relevant laws by January 2, 2011--the date on which GHGs become pollutants "subject to regulation" under the CAA--but want the ability to permit construction activity, then the state can, according to EPA, simply change their
interpretation of their laws.
States, EPA asserted, could declare that the term "subject to regulation" should "be considered not to apply literally in the case of GHG sources." As for getting approval from the legislature or undertaking a formal rulemaking, never mind:
Although EPA is revising its regulations to apply the phrase subject to regulation in this manner, we have been advised that states may be able to adopt our approach without having to undertake a rulemaking action to revise their state regulations or without requiring an act of the state legislature.
Instead, EPA continues:
it is our understanding that states may adopt our approach by interpreting the term ''subject to regulation'' reflected in their regulations to have the same meaning that we are assigning to that term in our regulations in this rulemaking.
So what does "subject to regulation" mean now? Whatever EPA says it means, the law and the intent of Congress notwithstanding:
A 'major stationary source' is any source of air pollutants, which emits, or has the potential to emit, depending on the source category, either 100 or 250 tpy or more of any air pollutant subject to regulation under the CAA,
except that the source's GHGs are considered to be subject to regulation under the CAA only to the extent indicated under Steps 1 and 2 of the Tailoring Rule, e.g., for Step 2, only if the source's GHG emissions exceed the threshold established in Step 2. [Emphasis added]
That is, not 100/250 tons, as the CAA clearly specifies, but 75,000 and 100,000 tons (Step 1 and Step 2, respectively). States, interpret away.
This act of legal contortion is astounding, both from the perspective of the rule of law and the regulatory certainty that evaporates in its application. This is probably part of what Rep. Dingell (D-Mich.) predicted when he dubbed greenhouse gas regulation under the CAA a "
glorious mess."
We suppose EPA's legal creativity, if that's the right term, is understandable as it shoehorns climate change into a statute that was never designed to regulate or control it. But EPA claims the Supreme Court, through
Massachusetts v. EPA, made them do it, which of course is not true. The Court gave EPA a choice, and it chose to regulate.
It also has chosen to arbitrarily change the meaning of the CAA. EPA's action in the tailoring rule harkens to Jefferson's aphorism:
Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.
