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CEI Fights Sierra Club Demands for CO2

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CEI Fights Sierra Club Demands for CO2

The Competitive Enterprise Institute (CEI) and more than a dozen other
conservative groups filed an amicus brief March 21 against a Sierra
Club petition demanding that EPA regulate carbon dioxide (CO2)
emissions from new electric power plants. (The amicus brief can be read
at CEI.org.)

CEI was joined by Freedom Works, National Center
for Public Policy Research, American Conservative Union, American
Legislative Exchange Council, Americans for Prosperity Foundation,
Americans for Tax Reform, Citizens Against Government Waste, Congress
of Racial Equality, Frontiers of Freedom Institute, Independent Women’s
Forum, National Center for Policy Analysis, National Taxpayers Union,
and 60 Plus Association.

The purpose of the Clean Air Act is
to protect public health and welfare from hazards created by airborne
pollutants. The act’s fundamental logic requires that EPA first
determine the dangerousness of an air pollutant before taking steps to
regulate it. In the case of CO2, EPA has not yet issued a finding that
CO2 emissions endanger public health or welfare. Sierra Club’s
“regulate first, ask questions” later approach stands the logic of the
Clean Air Act on its head.

The Sierra Club claims that the Supreme Court global warming case, Massachusetts v. EPA
(April 2, 2007), supports its position that CO2 is an air pollutant
currently “subject to regulation” for purposes of the Prevention of
Significant Deterioration (PSD) program.
“The Sierra Club’s
petition is preposterous,” said CEI Senior Fellow Marlo Lewis. “The
issue in Massachusetts v. EPA was whether EPA had to regulate CO2
emissions from new motor vehicles, under Section 202, a provision
dealing solely with mobile source emissions. The court specifically
said it was not ordering EPA to establish new tailpipe standards or
even that EPA had to issue or deny an endangerment finding regarding
CO2, only that EPA’s action or inaction must be grounded in the
statute. In no way, shape or form did the court tell EPA it had to
regulate CO2 emissions from stationary sources, such as the [new
coal-fired] Bonanza [Utah] power plant.”

If Sierra Club wins
the litigation, potentially hundreds of thousands of previously
unregulated small- to mid-sized farms, factories and buildings would
have to go through the costly and time-consuming PSD permitting
process, because the statutory threshold for regulation under PSD is
250 tons a year. “Two hundred and fifty tons may be a significant
amount of smog- or soot-forming emissions, but it is a minuscule amount
of CO2,” said Lewis. A commercial kitchen that uses natural gas for
cooking, or a mid-sized office building heated with gas or oil probably
emits 250 tons of CO2 annually.

PSD permits can take more than
a year and hundreds of thousands to millions of dollars to obtain. If
PSD is applied to CO2, EPA and its state-level counterparts will likely
be flooded with permit applications, diverting administrative resources
from more critical, statutorily required Clean Air Act
responsibilities. Construction activities around the country could come
to a screeching halt.

“We could end up with the regulatory
equivalent of a dozen Kyoto Protocols without Congress’s ever voting on
it or any of the Sierra Club’s allies on the Hill taking any
responsibility for the administrative morass and damage to the
economy,” said Lewis.