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Washington, D.C., Dec. 18, 2013 – An amicus brief  filed to the U.S. Supreme Court, on behalf of five U.S. Senators, argues that Congress never gave the U.S. Environmental Protection Agency authority to unilaterally impose permitting rules for greenhouse gas emissions, without statutory authorization. The brief, written pro bono by attorneys Theodore L. Garrett and Thomas R. Brugato of Covington & Burling LLP for an upcoming case on the EPA’s greenhouse gas regulations, bases much of its conclusion on Competitive Enterprise Institute (CEI) Senior Fellow Marlo Lewis’s posted review of nearly 700 proposed bills on greenhouse gases introduced over 11 Congresses.
In Utility Air Regulatory Group et al. v. EPA , the Supreme Court is reviewing the validity of the EPA’s April 2010 Timing Rule , which asserts that “major” stationary sources are automatically subject to permit requirements for greenhouse gas emissions. Under the Timing Rule, EPA regulation of any air pollutant under any part of the Clean Air Act automatically triggers preconstruction permit requirements for “major” stationary sources of that pollutant under the Act’s New Source Review , known as Prevention of Significant Deterioration  (PSD) permits, and Title V operating permit requirements.
According to the EPA, “major” sources of carbon dioxide (CO2), the most prevalent anthropogenic greenhouse gas, became subject to NSR and Title V permitting when the agency’s vehicle greenhouse gas emissions rule went into effect , on January 2, 2011.
Congress intended for the permit programs to apply only to large industrial facilities, but literally millions of small, non-industrial facilities emit enough CO2 (250/100 tons per year) to qualify as “major” sources for PSD and Title V permitting. To avoid a self-inflicted administrative meltdown, the EPA issued its June 2010 Tailoring Rule , which drastically raises the “major” source applicability thresholds from 250/100 tons per year, as specified in the statute, to 100,000/75,000 tons per year.
Statement by CEI Senior Fellow Marlo Lewis
The EPA acknowledges that the Timing Rule produces “absurd results” that conflict with congressional intent. Congress never intended for the agency to apply PSD and Title V permitting to small, non-industrial facilities. Yet that is the unavoidable consequence of the Timing Rule. Worse, the EPA’s proposed solution, its June 2010 Tailoring Rule, undermines the constitutional separation of powers. Agencies have no authority to rewrite congressional statutes, yet the Tailoring Rule attempts to unilaterally amend clear, numerical, statutory provisions.
To shed light on the key issue of congressional intent, I undertook two analyses of legislative history.
The first analysis  examines all 692 bills introduced during the 101st-111th Congresses containing the term “greenhouse gas” and all 55 bills containing the term “best available control technology” (BACT), the regulatory standard associated with “Prevention of Significant Deterioration,” (PSD), the type of NSR permit required under the Timing Rule. A second analysis  examined all 35 bills containing the term “prevention of significant deterioration.”
I chose that 21-year span (1989-2010) as the period of analysis because the 101st Congress was the last time Congress debated major amendments to the Clean Air Act since enacting the PSD provisions in 1977. The 111th Congress was the last one to debate major greenhouse gas regulatory legislation.
I found that although scores of bills proposed to regulate greenhouse gases, none proposed to require NSR and BACT for CO2 emissions. Indeed, the only regulatory climate bill to address this issue—and the only one ever passed by a chamber of Congress—was the American Clean Energy and Security Act (ACESA, H.R. 2454), introduced by Reps. Waxman and Markey in the 111th Congress, which expressly prohibited the application of PSD and Title V permitting for stationary sources based on their greenhouse gas emissions.