The Environmental Protection Agency today released final rules that will regulate greenhouse gas emissions from major polluters such as power plants - and almost certainly spark major litigation.
The new rules, which even the EPA said it expects to be challenged in court, "tailor" the Clean Air Act permitting requirements for greenhouse gases like carbon dioxide, raising the threshold so that fewer polluters will be affected.
But the key question is whether the agency has the authority to make such a change to the statute.
“It’s a common sense approach,” said EPA Assistant Administrator Gina McCarthy in a press conference call. “It will only apply to large industrial sources while shielding millions of small sources.”
The Clean Air Act requires permits for entities that emit 100 to 250 tons of pollutants per year. But greenhouse gases are emitted in much larger quantities than traditional pollutants. The 100 to 250 ton threshold would mean small farms, restaurants and apartment buildings, for example, would all need permits.
“We really don’t think Congress intended to apply permits to such a broad group,” McCarthy said.
The EPA’s answer: raise the greenhouse gas emission threshold to 100,000 tons per year for new entities. Existing entities that increase their emissions by 75,000 tons per year would need to include greenhouse gases in their permits. The agency says the rules will cover 67% of greenhouse gases from stationary sources.
“We’re perfectly comfortable this is legally appropriate,” McCarthy said.
The EPA has invoked the absurdity and administrative necessity doctrines to justify the change. In the proposed rule, the EPA wrote that “The judicial doctrine of ‘absurd results’ authorizes departure from a literal application of statutory provisions if it would produce a result that is inconsistent with other statutory provisions or congressional intent, and particularly one that would undermine congressional purposes.”
“We took great pains to make sure it’s legally defensible,” said McCarthy. “Every rule we write is with the full expectation that someone will challenge it.”
The Chamber of Commerce,in comments filed with the agency, agreed it would be absurd to apply the literal language of the statute, but objected to “EPA’s erasure of the statutorily prescribed emissions thresholds and the replacement of them with EPA prescribed thresholds.”
The Chamber wants EPA to reconsider its finding that greenhouse gases are an endangerment under the Clean Air Act.
The National Petrochemical & Refiners Association, which also opposes the rule, wrote that the EPA’s action “conflicts too directly with clear and unambiguous statutory language, and cannot be justified by the limited and narrow doctrines of ‘absurd results’ and ‘administrative necessity.’”