GHG’s on the Horizon

Regulation of GHG gases made headlines once again last week, on February 28 and 29 with the oral arguments for Coalition for Responsible Regulation v. EPA. Petitioners are challenging (1) the GHG endangerment finding, (2) the “tailpipe” rule setting GHG emission limits for vehicles, and (3) the “tailoring rule” that limits the GHG permitting requirements to facilities in excess of specified thresholds. Judges David Sentelle, Judith Rogers and David Tetel heard the arguments.

Since the endangerment finding, EPA finalized a fuel economy and GHG standards for light duty vehicles for model years 2012-2016 in April 2010, and proposed standards for vehicles and trucks for 2017-2025 on December 1, 2012. The final rule is expected in August 2012. EPA’s regulation of stationary sources, which was triggered by the mobile source tailpipe rule, has not progressed so quickly.

In December 2010, EPA settled a lawsuit from states and environmental groups for delayed stationary source regulations by agreeing to propose new source performance standards (NSPS) for power plants by September 30, 2011 and oil refineries by December 20, 2011. EPA has not met either deadline. After getting an extension on the NSPS for power plants until November 2011, EPA sent the rule to OMB on November 4, 2011, and though it projected proposing the rule in January 2012 has yet to do so. The final rule is due May 2012. The head of EPA’s Office of Air and Radiation, Gina McCarthy, recently stated that EPA is track to issue the rule soon, likely by the end of February. Proposal of the GHG NSPS for power plants will clearly displease Republicans Fred Upton, Joe Barton and Ed Whitefield on the House Committee on Energy and Commerce, who sent a letter to EPA on February 1, 2012 requesting the EPA not propose the rules. While the National Mining Association is opposing the NSPS regulation as a “back-door cap-and-trade energy tax” and launched an online petition opposing the regulation on its website, other industry members are lobbying OMB to release the rule. The release of the GHG NSPS for power plants ultimately may not appease many of the states and environmental groups that pushed for the regulation because the regulation may be “NSPS-Lite,” covering only new power plants, not existing power plants – like the coal-burning power plants that are biggest emitters of GHG in the US, as EPA’s new GHG mapping tool reveals.

It is unclear where EPA is on the NSPS for oil refineries, which were supposed to be proposed December 2011 and final November 2012.

EPA also sent the  the third and final piece of the tailoring rule to OMB for review on February 6, and may soon propose the regulation. Step one of the Tailoring Rule sets a threshold of 75,000 tons of GHG per year for PSD GHG permitting and applied the GHG permitting requirement to new facilities and facilities with significant modifications already subject to PSD permitting requirements for another criteria pollutant. The second step of the permitting rule applied GHG PSD permitting requirements to facilities subject to permitting only for GHG. In the third step of the Tailoring Rule, EPA may propose streamlining options for permitting resolve which small sources may be permanently exempted for GHG permitting requirements.  EPA said the third step would not require permitting for facilities with emissions less than 50,000 tons per year, until at least April 30, 2016. EPA plans to complete a study on the burdens of permitting on smaller emissions sources by April 2015.

Written by: Shani Harmon, GIELR Staff

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