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EPA Takes Aim at Texas Greenhouse Gas Emissions

Much to the chagrin of many Texans, the US Environmental Protection Agency (EPA) recently decided to regulate greenhouse gasses around the nation. This decision was a long time in the making and has important implications for the State of Texas and the whole nation. In this blog post, I’ll describe the legal backdrop of greenhouse gas regulation, and I’ll summarize the EPA’s proposed plans to tackle greenhouse gasses.

Greenhouse gasses are heat trapping gasses that some scientists believe cause global warming. Carbon dioxide is one of the most abundant greenhouse gasses, and some climate change experts believe that the compound’s increased presence in the Earth’s atmosphere causes global climate change. The compound is created naturally through human and animal respiration, and it is also a natural by-product of combustion. When humans burn things, like coal, oil or natural gas, carbon dioxide is released into the atmosphere. It is not yet definitely proven, in my mind, that man-made carbon dioxide has any appreciable impact on the earth’s temperature.

In the 2007 US Supreme Court case Massachusetts vs. EPA, the Court held that the EPA is required to study greenhouse gas emissions and determine whether greenhouse gas regulation is appropriate under the Clean Air Act (CAA).

The Supreme Court held that CAA section 202(a)(1) applies to greenhouse gasses, in addition to more traditional pollutants. The Court cited Section 202(a)(1) which requires the EPA Administrator to set emission standards for “any air pollutant” . . . “which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” While the Supreme Court did not hold that the EPA must regulate greenhouse gasses, it did require the EPA Administrator to take the first step and determine whether or not greenhouse gasses are reasonably anticipated to endanger public welfare.

In 2009, the EPA Administrator made two important findings. The Administrator found that current and projected concentrations of six key, well-mixed greenhouse gasses 1) contribute to man-made global warming, and 2) threaten the public health and welfare of current generations. Remember that under Massachusetts v. EPA‘s interpretation of the CAA, the EPA must regulate air all pollutants that are reasonably anticipated to endanger public health or welfare. Once the EPA determined that greenhouse gasses lead to global warming, the EPA was poised to set emissions standards for greenhouse gasses, as required by Massachusetts v. EPA‘s interpretation of the CAA.

The EPA now plans to regulate greenhouse gasses in three steps. In its first step, the EPA will target newly constructed or modified gross pollution emitters. Basically, new large power plants that are already subject to heavy EPA oversight will have to implement the “best available technologies” to control carbon dioxide emissions. In the second step, the EPA will expand its regulatory reach to all new and modified facilities that emit very large quantities of carbon dioxide, even if those facilities would not need a permit to emit any other pollutant. Again, all emitters will still be permitted to emit carbon dioxide, but they will have to employ the best available control technologies. Third, the EPA will engage in rulemaking in an attempt to streamline the entire greenhouse gas permitting process.

Some Texans are furious about the federal government stepping in and regulating greenhouse gasses. For example, have you ever seen rules by a federal agency “streamline” anything in your life? In a future blog post, I’ll discuss the State of Texas’ reaction to potential EPA carbon dioxide oversight, and I’ll outline Congressional attempts to stop the EPA.

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