Carbon Rationing by Other Means: After Congress Fails to Regulate Greenhouse Gases, the President Hands the Job to the EPA

By Bailey, Ronald | Reason, April 2011 | Go to article overview

Carbon Rationing by Other Means: After Congress Fails to Regulate Greenhouse Gases, the President Hands the Job to the EPA


Bailey, Ronald, Reason


PLAN A WAS to get Congress to adopt a massive cap-and-trade carbon rationing scheme.

The idea was to impose mandatory cuts on U.S. emissions of the greenhouse gases, chiefly carbon dioxide, that are thought to be warming the atmosphere. Six months after President Barack Obama's inauguration, a cap-and-trade bill managed to squeak through the House of Representatives--once it was larded up with billions in pork.

But attempts to get cap and trade through the Senate foundered last July when Senate Majority Leader Harry Reid (D-Nev.) admitted he could not muster the votes. The midterm elections, in which the Republicans took control of the House and increased their membership in the Senate, ensured that Plan A was off the table.

Now on to Plan B.At a press conference after the elections, Obama declared: "Cap and trade was just one way of skinning the cat; it was not the only way. It was a means, not an end. And I'm going to be looking for other means to address this problem" The president then handed the cat-skinning job over to the Environmental Protection Agency (EPA), which is imposing limits on greenhouse gas emissions by means of regulations under the Clean Air Act.

Not surprisingly, this attempt at atmospheric central planning has engendered considerable opposition.

A bit of history: Back in x999, a bunch of environmental advocacy groups filed a petition with President Bill Clinton's EPA asking the agency to regulate greenhouse gas emissions under the Clean Air Act. The Clinton-era EPA issued a legal opinion asserting that the agency did indeed have the authority to regulate carbon dioxide emissions. In 2003 the EPA under President George W. Bush denied the activists' petition, asserting a lack of authority under the Clean Air Act.

The activists, joined by several state attorneys general, pursued their case to the U.S. Supreme Court. In 2007 the Court ruled 5 to 4 in Massachusetts v. EPA that the agency did have the power to regulate greenhouse gases if the agency had reason to conclude under the Clean Air Act that they were a form of "air pollution which may reasonably be anticipated to endanger public health or welfare" In December 2009, the agency issued a finding that concluded exactly that. That decision triggered the current EPA rulemaking process.

Traditionally, the EPA set national ambient air quality standards for a list of six pollutants: ozone, carbon monoxide, nitrogen oxides, sulfur oxides, particulates, and lead. Under the Clean Air Act, operating permits are required for any entity emitting more than 100 tons of these air pollutants per year or any new facility with the potential to emit more than 250 tons per year. New facilities must persuade regulators that they are installing the best available control technology before being allowed to operate. While the limits were set by the federal Clean Air Act, state environmental agencies generally administer the air pollution permitting programs.

The EPA acknowledged that millions of facilities emit as much as 100 tons of greenhouse gases annually, including small dairy farms, large apartment buildings, hospitals, schools, and churches. It would be "absurd" to impose greenhouse gas permitting requirements on that many sources, the EPA concluded, because the effort would overwhelm regulators. The agency's solution: Ignore the statutory thresholds and "tailor" the regulations to fit what the government could handle.

Under a "tailoring rule" that took effect in January, all new projects must use the best available control technology if they would increase greenhouse gas emissions by the equivalent of 75,000 tons of carbon dioxide per year. …

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