Bluff and Bluster: The Real Story Behind EPA Regulating Greenhouse Gases (Part 1)

You’ve read the stories. You’ve seen the quotes and the scary pictures and graphics. Unless the Senate passes a cap and trade bill to regulate (aka: tax) greenhouse gas emissions, the USEPA will regulate those emissions through the Clean Air Act and – cue ominous music – you’re not going to like that.

Don’t buy it. It’s a bluff. The last thing that the Obama administration and USEPA Administrator Lisa Jackson want to do is to try to regulate greenhouse gases through the Clean Air Act. It would be a nightmare for the USEPA, creating enmity among large swathes of the populace, forcing people to reassess the shaky science behind global warming and it would take many, many years to implement the regulatory measures necessary to actually reduce these emissions. The Clean Air Act threat is a desperate attempt at extortion, with the ultimate goal of forcing a pointless cap and trade bill down our throats.

Trust me here. I’m an expert on two things: 1) the best places to enjoy a cold beer in the southeast side of Chicago, and 2) air pollution regulation, especially the Clean Air Act. Indeed, I wrote the book. (Which I encourage nobody to buy, because, unless you happen to manage environmental affairs for some industrial concern, it will bore you to tears). Even given Barack Obama’s vaunted talent for ignoring and working around rules that he finds inconvenient, the Clean Air Act presents too many insurmountable obstacles for even an “Ocean Reversing Czar” to overcome. The reasons why are complicated, but we’ll do this in a couple of parts and – hopefully – I’ll keep the explanations entertaining enough that you won’t fall asleep.

Let’s start here: exposing the tyranny of the system:

The Clean Air Act divides air pollutants into two subsets. Common, or “criteria,” air pollutants are those pollutants that are emitted in large quantities and are perceived to create a threat to human health and the environment across the nation as a whole. Toxic, or “hazardous,” air pollutants are emitted in much lower quantities and are supposed to threaten human health and the environment at the local level only. USEPA’s recent endangerment finding places carbon dioxide, and other greenhouse gases, into the former category.

Having decided that greenhouse gases are criteria pollutants, USEPA is now obligated to regulate them as it would any other criteria pollutant. Among other things, that means dragging major sources of greenhouse gas emissions into the permit system. Under the Clean Air Act, a major source of a criteria pollutant is defined as a source that has the ability to emit 100 tons per year of that pollutant. (You may find other sources that say the threshold is 250 tons per year. This higher threshold only applies to new construction projects. For any existing sources that are regulated under the operating permit – Title V – program, 100 tons per year applies, and that’s what really matters).

In a world where greenhouse gases are defined as a criteria pollutant, 100 tons per year is an extraordinarily low threshold, so low that the USEPA itself shudders at the prospect of trying to regulate all of the sources that would be sucked into their system.

The solution to this bureaucratic dilemma was proposed by Lisa Jackson’s EPA on September 30, 2009 in the form of the Agency’s “tailoring rule”. Under this regulation, USEPA would do away with the 100 ton per year threshold when it comes to greenhouse gases and replace it with a much more manageable threshold: 25,000 tons per year. The reason for taking this action is clearly stated in the preamble of the proposed rule:

Without this tailoring rule, permitting authorities would… be required to issue title V permits for approximately some six million sources – currently, their title V inventory is some 15,000 sources.

So, without this rule, we would see a 40,000% increase in EPA’s responsibility and authority. Even in the Obama era, a 40,000% increase in anything related to the government is mind-boggling. So mind-boggling in fact that Jackson has used the prospect of such action as her excuse for deciding, in effect, that her regulatory agency has the authority to amend the Clean Air Act, even though Congress never gave the USEPA (or any other regulatory agency) the authority to modify the legislation which empowered the regulatory agency in the first place.

This is tenuous legal ground, equivalent to granting the police department the power to decriminalize behavior based on their work load. If Republicans want to derail global warming hysteria, here’s a first step: challenge the tailoring rule. Demand that USEPA regulates the 6 million major sources of greenhouse gas emissions that an Act of Congress says they should.

Why would any advocate of small government support such a course? For the very same reason that USEPA says it needs the tailoring rule in the first place: because greenhouse gas regulation under the Clean Air Act is absurd. The Agency justifies this rule by quoting the judicial doctrine of “absurd results,” which states that a regulatory authority doesn’t have to follow the letter if the law if doing so creates ridiculous requirements. But, as daunting as creating a 40,000% increase in regulated sources may appear, it’s not an impossible – or even infeasible – goal. The EPA has the authority to modify its permit program to accommodate smaller sources and the ability to utilize the electronic tools available in the 21^st century to make doing so relatively easy. The real issue is not whether the EPA can handle 5,985,000 new major sources if they emit regulated greenhouse gases under a strict interpretation of the Clean Air Act, it is rather what doing so would cost in political capital.

Those 5,985,000 new major sources would include – among other entities – churches, schools, small businesses and (how ironic is this?) celebrity homes like Al Gore’s and Brad Pitt’s palatial estates. The mere threat of increased government control of health care drove the bluest of the blue states to elect a Republican to represent Massachusetts in the United States Senate. Is there any doubt how church-goers, parents and small business owners would react if they were suddenly informed that they were “destroying the planet” along with the coal-fired power plants? Such an initiative on the part of USEPA would, I submit, cause millions of Americans to re-examine their beliefs regarding so-called “global warming,” and that would be a good thing.

Still, let us assume the worst case scenario: that nobody challenges the tailoring rule in court (a move that would delay greenhouse gas regulation for years). USEPA would then be free to implement greenhouse gas regulation under the Clean Air Act. That may happen sooner than you think. Most do not yet realize it, but the first stage of greenhouse gas regulation is scheduled to kick in this April. Yet, the results will not be nearly as crippling as many have lead you to believe, for reasons we explain in part two of this series.