Almost two years after the Supreme Court declared, in Massachusetts v. EPA, that CO2 is an “air pollutant” for purposes of the Clean Air Act, this announcement, paired with the decision to reconsider California’s request for permission to regulate greenhouse gas emissions from cars (see Rick’s post and the Federal Register notice), shows that the Obama administration is serious about applying the Clean Air Act to greenhouse gases.
That’s a good thing. Although it would be awkward to develop and implement a National Ambient Air Quality Standard for CO2, as Michael Hanemann and I have explained, the technology-based and planning provisions of the Clean Air Act are both well suited to addressing the climate change problem and needed to induce innovation. Furthermore, robust application of the Clean Air Act to greenhouse gases will keep the pressure on Congress, which seems to be in no hurry to pass legislation specific to greenhouse gas emissions.
Johnson’s memo was issued in response to an Environmental Appeals Board decision finding that EPA had not adequately explained its failure to include “Best Available Control Technology” requirements for CO2 in a permit allowing expansion of a coal-fired power plant in Utah. The Clean Air Act’s “Prevention of Significant Deterioration” program requires that permits include control measures for any pollutant “subject to regulation” under the Clean Air Act. Johnson’s memo argued that CO2 is not a regulated pollutant because, although EPA has required some monitoring of CO2 emissions since 1993, it has never imposed any emission limits.
In her letter granting the petition for reconsideration, Jackson declined to stay application of the memorandum, but did point out that states (who are responsible for the majority of permits) are free to ignore it, and that no one should “assume that the memorandum is the final word” on permitting requirements.
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Holly Doremus | February 19, 2009
This item is cross-posted by permission from Legal Planet, “the Environment, Law and Policy Blog.” New EPA Administrator Lisa Jackson has granted the Sierra Club’s petition to reconsider a memorandum issued by outgoing Administrator Stephen Johnson in December. Almost two years after the Supreme Court declared, in Massachusetts v. EPA, that CO2 is […]
Matthew Freeman | February 19, 2009
CPR Member Scholar Nina Mendelson has a piece today in The New York Times’s “Room for Debate” feature on the news that EPA is working its way toward regulating carbon dioxide emissions under the Clean Air Act. As The Times quite directly and correctly puts it, “Under orders from the Supreme Court, which the Bush […]
Matthew Freeman | February 18, 2009
Over on Legal Planet, CPR Member Scholar Holly Doremus of UC-Davis and -Berkeley posted a blog Sunday on an upcoming decision on whether to introduce the Suminoe oyster, native to China and Japan, to the Chesapeake Bay. She writes: The U.S. Army Corps of Engineers issued a draft EIS last fall considering the impacts of […]
Shana Campbell Jones | February 17, 2009
You’ve heard it before, and you’ll hear it again: climate change is different from traditional environmental problems. It’s global, for one thing. Carbon dioxide isn’t a traditional pollutant, for another. It doesn’t cause cancer. It doesn’t kill fish. Plants use it in photosynthesis; every human and animal emits it. The problem is that combustion creates […]
Matthew Freeman | February 16, 2009
Editor’s Note: Following is the last of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee. In December, both published books on the issue. (The first blog post in the series includes some background on the issue. The second discussed the very real impact the outcome of […]
Matthew Freeman | February 13, 2009
Editor’s Note: Following is the third of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee. In December, both published books on the issue. (The first blog post in the series includes some background on the issue. The second discussed the very real impact the outcome of […]
Yee Huang | February 12, 2009
From the airspace over the Indonesian gold mine Batu Hijau, it might seem as though the mythical King Midas has been resurrected in a modern, and twisted, form. Where King Midas of Greek lore was granted the touch of gold, the modern King Midas assumes the form of a global mining company that, in a […]
Margaret Clune Giblin | February 11, 2009
Both versions of the economic stimulus package – that passed by the House and by the Senate – include funding for the National Park Service. The bill the House passed last month would allocate $1.7 billion to the National Park Service for “projects to address critical deferred maintenance needs within the National Park System, including […]
Rena Steinzor | February 10, 2009
We’ve written a great deal about Cass Sunstein, the Harvard law professor who is expected to get the nod to be the “regulatory czar” for the Obama Administration. In a nutshell, our concern is that Sunstein will stifle the efforts of health, safety, and environmental protection agencies to struggle to their feet after eight long […]