NCBA Challenges EPA’s Interpretation of Greenhouse Gas Permitting Rules
WASHINGTON – The National Cattlemen’s Beef Association (NCBA) and the Coalition for Responsible Regulation, Inc. (“the Coalition”) filed a Petition for Review in the DC Circuit Court of Appeals on Friday, April 2 challenging the Environmental Protection Agency's (EPA) recent rule which reconsidered the so-called “Johnson Memo” interpreting when greenhouse gases (GHGs) become subject to the federal Prevention of Significant Deterioration (PSD) permit program. The final rule, announced March 29, is the second step in EPA’s phased-in approach to GHG regulation. Under EPA’s decision, facilities would be required to get PSD permits for GHG emissions starting in January 2011 when the first national rule controlling GHGs (from cars) takes effect, and would be required to do so without EPA undertaking the deliberate rulemaking process required by the Clean Air Act (CAA).
“While EPA touts its decision to hold off on regulation until next year as a ‘common sense’ plan to give industry time to comply, this is nothing more than a smokescreen in an attempt to distract the public from the fact that EPA is circumventing the normal, required rulemaking process for such regulation. Under the CAA, the EPA must adopt a National Ambient Air Quality Standard for a pollutant prior to regulating it under the PSD program. No such rulemaking has been undertaken. As we have said many times, the consequence of GHG regulation will be economic devastation for American businesses,” said Tamara Thies, NCBA chief environmental counsel. “Before imposing very-real, long-term negative impacts on the entire U.S. economy, the EPA should at least follow Congress’ strict instructions for regulating pollutants under the PSD program.”
The rule also strictly prohibits “grandfathering”, meaning that any project not actually issued a final PSD permit by January 2, 2011, will be subject to GHG emissions reviews prior to such permitting. Inevitably, a number of projects will be held up until GHG-based reviews can take place. These projects will be left with little recourse once the compliance deadline takes effect. Furthermore, while EPA will not grant sufficient time for states to amend their permitting-programs prior to the imposition of federal GHG regulations, states will not be allowed to issue valid permits after January 2011 without GHG reviews.
“EPA’s decision to violate mandates under the Clean Air Act and to try to sell the rule to the public as if it were doing industry a favor by deferring the compliance date, is unfortunate. While it may buy some additional time from a permitting standpoint, it does not solve the inherent problems associated with the fact that the CAA is being circumvented in the process, and EPA’s decision to regulate GHGs in the first place,” said Thies. “With so much scientific uncertainty surrounding climate change, and humans’ alleged contribution to it, it’s extremely premature for EPA to be moving forward with GHG regulation.”
In December 2009, EPA issued a finding that GHGs are an “endangerment” to public health and the environment—providing EPA with a foundation from which to regulate GHGs under the Clean Air Act (CAA), from small and large sources throughout the economy, including farms, hospitals, office buildings and schools. NCBA and the Coalition filed petitions with the DC Circuit Court of Appeals and EPA challenging the science behind EPA's finding. NCBA is also supporting resolutions by Sen. Lisa Murkowski (R-Alaska), Rep. Ike Skelton (D-Mo.) and Rep. Joe Barton (R-Texas) to prevent EPA from moving forward on GHG regulation.