Letter to Sen. Feinstein on CO2 and the Clean Air Act

Under the CAA, no new or existing “major” stationary source of a regulated pollutant may be built or modified (if the modification increases emissions) unless the source first obtains a PSD permit. A source is defined as “major” if it is either in one of 28 listed industrial categories and emits at least 100 tons per year of an air pollutant, or is any other type of establishment and emits at least 250 tons per year. Two hundred and fifty tons may be a reasonable regulatory threshold for smog- and soot-forming emissions. It is a miniscule quantity of CO2—roughly the amount emitted each year by a mid-sized commercial building that uses fossil fuels for heating.

A PSD permit can take years and hundreds of thousands to millions of dollars to obtain. In their November 8, 2007 testimony before the House Government Reform and Oversight Committee, attorneys Peter Glaser and John Cline state that, “No small business requiring a moderate-sized building or facility heated with fossil fuel could operate subject to the PSD permit administrative burden.”

PSD permitting is time-consuming because, to obtain a permit, a regulated entity must install “best available control technology,” and BACT determinations are made on a case-by-case basis. However, nobody knows yet what BACT for CO2 entails. Glaser and Cline caution that applying BACT to CO2 would create “considerable, and perhaps fatal, uncertainty for businesses.” They explain: “Since BACT determinations for CO2 have no regulatory history at this time, and can vary by type of facility and from state-to-state, businesses wishing to construct new sources or modify existing ones would have no basis for planning what the regulatory requirements will be.” In a December 12, 2007 letter to Congress, the Chamber of Commerce and 18 other trade associations warn that extending PSD to CO2—the unavoidable consequence of an endangerment finding—could bring construction activities “to a screeching halt.”

The likely environmental repercussions are equally unsavory. Once EPA and its state-level counterparts start making BACT determinations for CO2, they would be flooded with permit applications from potentially hundreds of thousands of “major” stationary sources. Environmental agencies would be forced to squander their administrative resources pursuing inconsequential CO2 reductions to the neglect of more critical, statutorily-required CAA responsibilities.

An endangerment finding could also compel EPA to initiate a National Ambient Air Quality Standards (NAAQS) rulemaking for CO2. Under the NAAQS program, EPA must reduce atmospheric concentrations of the targeted pollutant to a level that protects public health and welfare with an “adequate margin of safety.” Plaintiffs in Mass v. EPA argued that current CO2 levels already harm public health and welfare. What would it take to actually lower CO2 levels? The Kyoto Protocol would barely slow the increase in CO2 concentrations. Even outright de-industrialization of the United States might not be enough to decrease CO2 levels. Establish NAAQS for CO2, and there is in principle no limit to the economic sacrifices that could be demanded of the American people.

Congress never intended for Section 202, which deals solely with motor vehicle emissions, to instigate a massive expansion of stationary source regulation, much less to depress the construction industry. Congress also did not intend for Section 202 to spawn an administratively crippling paperwork nightmare for EPA and its state-level counterparts. Nor did Congress intend for Section 202, which requires EPA to consider compliance costs when setting tailpipe emission standards, to leverage money-is-no-object regulation under the NAAQS program.

Above all, Congress never intended for Section 202 to allow litigants and courts to usurp legislative power and set climate policy for the nation. Yet the regulatory cascade triggered by an endangerment finding could subject the U.S. economy to the equivalent of a dozen Kyoto Protocols without Congress ever voting on it.

You may not have been aware of the economic, administrative, and constitutional perils that an endangerment finding could unleash when you wrote to Administrator Johnson. We would be happy to discuss these important issues with you at your convenience.

Sincerely,

Marlo Lewis, Senior Fellow

Competitive Enterprise Institute

 

Sally Pipes

President and CEO

Pacific Research Institute for Public Policy

 

Duane Parde

President

National Taxpayers Union

 

Matt Kibbe

President and CEO

Freedom Works

 

Paul K. Driessen

Senior Policy Advisor

Congress of Racial Equality 

 

Thomas Schatz

President

Council for Citizens Against Government Waste

 

George Landrith

Chairman

American Environmental Coalition

 

Lewis K. Uhler

Founder and President

National Tax Limitation Committee

 

Grover Norquist

President

Americans for Tax Reform

 

David Keene

President

American Conservative Union

 

Dan Simmons

Natural Resources Director

American Legislative Exchange Council

 

Honorable Malcolm Wallop

Chairman

Frontiers of Freedom

 

Jim Martin

President

60 Plus Association

 

Terry Scanlon

President

Capitol Research Center

 

Kelsey Zahourek

Executive Director

Property Rights Alliance

 

Cliff Kincaid

President

America’s Survival, Inc.

 

Dr. William Greene

President

RightMarch.com

 

 

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