Powerful Tool to Regulate Greenhouse Gases Under Attack

By Colin Bennett

In early 2007 the U.S. Supreme Court, in Massachusetts v. EPA, ruled that greenhouse gases, including carbon dioxide, are air pollutants covered by the Clean Air Act, and as such, can be regulated by the Environmental Protection Agency. Two years later the EPA responded by proposing a finding that GHGs "contribute to air pollution that may endanger public health or welfare". Then, in September of 2009 the EPA followed up with "a proposal that is focused on large facilities emitting over 25,000 tons of greenhouse gases a year. These facilities would be required to obtain permits that would demonstrate they are using the best practices and technologies to minimize GHG emissions." This decision was lauded by environmentalists who were excited by the prospect of the federal government finally taking on climate change. (A summary of the EPA's proposed rule can be found here.)

Specifically, the EPA would regulate facilities that emit 25,000 tons per year or more of carbon dioxide equivalents including refineries, power plants, and cement production facilities. The carbon dioxide equivalents include corresponding amounts of methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. According to the EPA, "The proposed thresholds would “tailor” the permit programs to limit which facilities would be required to obtain [NSR and title V] permits and would cover nearly 70 percent of the national GHG emissions that come from stationary sources, including those from the nation’s largest emitters—including power plants, refineries, and cement production facilities."

Now, under an amendment added to an unrelated bill, the EPA is in danger of losing its authority to regulate GHGs. According to a press release from the U.S. Senate Committee on Energy and Natural Resources, the amendment, introduced by Senator Lisa Murkowski (R-AK), "would prohibit the Environmental Protection Agency from spending money on regulating carbon dioxide from stationary sources under the Clean Air Act for a period of one year." According to the Washington Post, "two Washington lobbyists, Jeffrey R. Holmstead and Roger R. Martella, Jr., helped craft the original amendment Murkowski planned to offer on the floor last fall. Both Holmstead, who heads the Environmental Strategies Group and Bracewell & Guiliani, and Martella, a partner at Sidley Austin LLP, held senior posts at EPA under the Bush administration and represents multiple clients with an interest in climate legislation pending before Congress."

Fearing that any delay to federal action, especially a delay motivated by the interests of industry, will severely hamper our ability to curtail the worst effects of climate change, many environmental groups are crying foul. These groups, including the National Wildlife Federation, Earthjustice, Repower America, and the Union of Concerned Scientists are calling on the Senate to reject the amendment. Each of them has set up electronic 'action alerts' to allow citizens to contact their senators to voice their opposition to the amendment.

Although both the Post and the N.Y. Times are reporting that Senator Murkowski may end up delaying offering her amendment, groups opposed to the measure are not giving up the fight to see the amendment disappear for good.

Senator Lisa Murkowski (R-AK)

Photo Courtesy Wikimedia Commons