“The EPA acknowledges that the Timing Rule produces ‘absurd results’ that contravene congressional intent…. The Timing Rule clearly exceeds any discernible congressional intent and should be overturned.”
An amicus brief filed this week to the Supreme Court on behalf of five U.S. Senators argues that “Congress never intended for EPA to have authority to impose” Clean Air Act permitting requirements on stationary sources of greenhouse gases.
The brief, written pro bono by Theodore L. Garrett and Thomas R. Brugato of Covington & Burling LLP, bases its conclusion on my review of nearly 700 proposed bills on greenhouse gases that were introduced between 1989 and 2010.
Background on the Case
The Court in Utility Air Regulatory Group v. EPA is reviewing one question: “Whether EPA permissibly determined that greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” In other words, the Court is reviewing the agency’s April 2010 Timing Rule.
According to the Timing Rule, regulation of any air pollutant under any part of the Clean Air Act automatically triggers New Source Review (NSR) preconstruction and Title V operating permit requirements for “major” stationary sources of that pollutant. This means that “major” sources of carbon dioxide (CO2), the chief anthropogenic greenhouse gas, became subject to NSR and Title V permitting on the day the agency’s greenhouse Tailpipe Rule took effect (January 2, 2011).
The specific type of NSR permit required by the Timing Rule is called Prevention of Significant Deterioration (PSD). To obtain a PSD permit, a covered source must commit to meet case-specific emission limitations known as “best available control technology” (BACT).
The EPA acknowledges that applying the PSD and Title V programs to greenhouse gases leads to “absurd results” – unintended consequences that conflict with and undermine congressional intent. 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 under the PSD and Title V programs.
To avoid a self-inflicted administrative meltdown, the EPA issued its June 2010 Tailoring Rule, which revises the “major” source applicability thresholds from 250/100 tons per year, as specified in the statute, to 100,000/75,000 tons per year. The Tailoring Rule is itself an absurd solution, because under the constitutional separation of powers agencies have no authority to rewrite congressional statutes.
What Does Legislative History Reveal about Congressional Intent?
The EPA acknowledges that the Timing Rule produces “absurd results” that contravene congressional intent. Congress, the agency correctly finds, never intended for the EPA to apply PSD and Title V to small, non-industrial facilities. Yet that is the unavoidable consequence of the Timing Rule.
The EPA could have avoided both the Timing Rule’s absurd results and the brazen overreach of its attempt amend (“tailor”) clear, numerical, statutory provisions had it first inquired whether Congress ever intended for the agency to apply the permitting programs to greenhouse gases.
To shed light on the key issue of congressional intent, I undertook two analyses of legislative history using Thomas, the search engine of the Library of Congress.
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” – the regulatory standard associated with PSD, the type of NSR permit required under the Timing Rule.
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, and the 111th Congress was the last time Congress debated 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. Indeed, the only regulatory climate bill to specifically address this issue – and the only one ever passed by a chamber of Congress – was H.R. 2454, the American Clean Energy and Security Act (ACESA), introduced by Reps. Waxman and Markey in the 111th Congress. Sections 834 and 835 of ACESA would expressly prohibit the application of PSD and Title V to stationary sources based on their greenhouse gas emissions.
To make sure nothing fell through the cracks, I conducted a second analysis of all 35 bills introduced during the 101st-111th Congresses containing the term “prevention of significant deterioration.” Only one bill with greenhouse gas regulatory provisions also mentions “prevention of significant deterioration” – S.1168, the Clean Air/Climate Change Act, introduced in the 110th Congress. The term occurs in a finding that is separate from, and unrelated to, the greenhouse gas regulatory provisions.
What about Title V? The purpose of Title V is to facilitate Clean Air Act compliance by consolidating all of a covered source’s pollution control requirements into a single, comprehensive, operating permit. The 101st Congress enacted Title V as part of the Clean Air Act Amendments of 1990. In its deliberations on those amendments, the 101st Congress considered and rejected proposals to regulate greenhouse gases from both mobile and stationary sources. Clearly, the Congress that enacted Title V had no intention of applying it to sources based on their greenhouse gas emissions.
More than 99% of the estimated 6.1 million ”sources” that emit enough CO2 to qualify as “major” under Title V are small (mostly non-industrial) facilities and currently have no emission control requirements to comply with or report. A significant fraction of those sources would have compliance requirements to report in Title V permits if they were subject to PSD permitting and BACT for CO2. But, as shown above, Congress never intended for the EPA to regulate greenhouse gases through the PSD program. It would be extremely absurd for Congress to impose Title V permitting fees and paperwork burdens on sources with no emission control requirements. There is not a shred of evidence that Congress ever did so.
The legislative history reveals a breathtaking absence of congressional intent for the regulatory path prescribed by the EPA’s Timing Rule. The Timing Rule clearly exceeds any discernible congressional intent and should be overturned.