Cross-posted from Flatt Out Environmental.
As expected, the EPA's "tailoring rule," under which it proposes to regulate stationary sources of greenhouse gases under the Clean Air Act (CAA) only if they produce over 75,000 tons of carbon dioxide equivalent forcing per year, has been challenged in court by numerous organizations. These include industry, several states (the usual suspects including Texas), and more surprisingly several environmental organizations.
The crux of industry and state challenges to the tailoring rule is that it is illegal pure and simple. Specifically, the challenges note that the CAA requires that when the EPA regulates stationary sources under the CAA, that it do so for sources that emit over either 100 or 250 tons per year. Of course, industry doesn't really want all of these smaller sources regulated, but they want to make it virtually impossible for EPA to regulate at all. If the EPA had to regulate all of these small sources, regulation would be virtually impossible. (EPA's primary argument for the legality of the tailoring rule is a doctrine known as "administrative impossibility"). Even if the EPA tried to, Congress would surely take action then to suspend the regulation (something that it has not been able to do so far, though several Senators have tried).
The environmental organizations take the other tack, claiming that while they don't oppose "tailoring" out small sources, that the level is not small enough. (They prefer 25,000 tons per year).
In Texas's letter explaining its position, it goes further and eschews the EPA's interpretation that greenhouse gases are now "subject to regulation," and declares that the state of Texas will not regulate. Though the letter puts up some straw men in the argument about the fact that Texas can't regulate greenhouse gases because the state definition of "subject to regulation" doesn't include greenhouse gases, the bottom line is that Texas, like all other states with delegated programs, must comport its State Implementation Plan (or SIP) to the EPA's definitions or be subject to withdrawal of authority. Of course, Texas is already subject to having its authority withdrawn so I suppose it has nothing to lose, but it shouldn't pretend that states administering the CAA aren't required to comport with the EPA's definitions. (I would also point out that regardless of the tailoring rule's fate, most agree that the definition of "subject to regulation" will include greenhouse gases after the EPA starts regulating them in January 2011 (pursuant to Supreme Court directive) and that this interpretation does not have to go through formal notice and comment, as Texas should well know.)
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Victor Flatt | August 4, 2010
Cross-posted from Flatt Out Environmental. As expected, the EPA’s “tailoring rule,” under which it proposes to regulate stationary sources of greenhouse gases under the Clean Air Act (CAA) only if they produce over 75,000 tons of carbon dioxide equivalent forcing per year, has been challenged in court by numerous organizations. These include industry, several states […]
Ben Somberg | August 3, 2010
The Minerals Managements Service’s coziness with an industry it was supposed to be monitoring has brought attention back to an all-too-pervasive problem: regulatory agencies becoming “captured” by the regulated industries. This morning the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts is holding a hearing on “Protecting the Public Interest: Understanding the Threat […]
Ben Somberg | July 29, 2010
You may have read of a letter sent by 31 Representatives to the EPA today to complain about coal ash regulation. I wasn’t planning on dignifying it with a response, but sometimes something just calls out for a little highlighting. Like when the members write: “States have been effectively regulating CCRs” That’s actually a case […]
Thomas McGarity | July 28, 2010
Now that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law. The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress […]
Lena Pons | July 27, 2010
The Motor Vehicle Safety Act of 2010 (H.R. 5381/S. 3302), the primary legislation on the table in response to the Toyota unintended acceleration fiasco, went through the committee process in the House and Senate earlier this summer. The bills, as introduced, included some tough provisions to respond to gaps exposed by the Toyota episode. Among […]
Catherine O'Neill | July 27, 2010
The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental […]
Daniel Farber | July 26, 2010
Cross-posted from Legal Planet. A key figure in behavioral economics recently issued a warning about over-reliance on its findings. In a NY Times op. ed, Dr. George Lowenstein raised questions about some uses of behavioral economics by government policymakers: As policymakers use it to devise programs, it’s becoming clear that behavioral economics is being asked […]
Yee Huang | July 23, 2010
July 1 marked the 35th anniversary of the effective date entry-into-force of the Convention on International Trade in Endangered Species (CITES). While CITES is among the stronger international conventions, its strength is diminished by a lack of an enforcement mechanism and political maneuverings. The arrests and cargo seizures may not make headlines often, but international […]
Alice Kaswan | July 23, 2010
After endless negotiations and draft bills, the Senate has given up on climate legislation that would place any sort of cap on the nation’s emissions, and will likely settle for a few select energy initiatives. Congress’ failure to act is galling. Hand wringing is fully justified. But what now? State and local governments have become accustomed to federal paralysis, […]