Senate Bill Puts EPA Back in the Climate Game, and the Agency Wastes No Time Acting

When the House passed its version of a federal climate bill in June, lawmakers included a provision to handcuff the Environmental Protection Agency when it came to greenhouse gas emissions from the nation's biggest polluters.

Bowing to demands of coal state Democrats, lawmakers effectively agreed that the agency shall not regulate "stationary sources" for CO2 — in other words, hands off the greenhouse gases from coal plants and large industries.

Today in the Senate, those handcuffs came off. The Senate climate bill introduced by Sens. Barbara Boxer and John Kerry made no mention of restricting EPA authority the way the House version did, and the agency wasted no time in raising both free hands in a move that put it emphatically center stage in the climate game.

Just hours after the roll-out of the Boxer-Kerry bill, EPA issued a press release explaining how it plans to control emissions from big polluters, including new power plants, by establishing common sense regulatory rules. EPA Administrator Lisa Jackson announced the details during a keynote address at the Governors' Global Climate Summit in California.

"We will not continue with business as usual while waiting for Congress to act," Jackson said from the podium.

It was the same Global Climate Summit where last November a newly-elected Barack Obama delivered a videotaped message, vowing U.S. leadership on climate change, and made instant global news.

While today's EPA announcement is not likely to be appreciated worldwide, it does provide evidence of the Obama administration's commitment to climate action ahead of international talks in Copenhagen. It is also an important regulatory development that will help determine whether the U.S. will really be able to reduce domestic industrial emissions of greenhouse gases or not.

Absent EPA authority, large loopholes and handouts in both the Senate and House versions of the climate bill will make it difficult, if not impossible, for the nation to depart from the trajectory of business as usual for decades. That's why one of the fiercest upcoming battles in the partisan war over federal climate law will be over the reach and authority of the EPA in reducing greenhouse gas emissions.

The 416-page proposal EPA introduced today will require large industrial facilities that emit at least 25,000 tons of greenhouse gases a year to obtain construction and operating permits for the release of the emissions. Smaller facilities would be exempt. The proposal is known as the "tailoring rule," needed to allow the Clean Air Act to be effectively applied to CO2.

It could face legal challenges. Opponents say the proposed tailoring rule overturns a specific Congressional mandate written into law that sets the emissions threshold at 250 tons. EPA has no authority to override the will of Congress, they argue. The lower threshold makes sense for other pollutants regulated by the Clean Air Act, but if applied to CO2, it would require regulation of absurdly small sources of emissions.

Jackson told reporters she still expects to hear about doomsday scenarios — everything from regulating cows to regulating Dunkin’ Donuts. “That’s not going to happen,” she said. As for legality,

“EPA would not propose a rule that we did not believe made good sense," Jackson said. "In implementing the Clean Air Act, we have looked with our attorneys and certainly believe that it is more than defensible.”

On the first page of its proposal, now subject to a 60-day public comment period, EPA argues that the rule would be justified "on the basis of the legal doctrines of 'absurd results' and 'administrative necessity.'" If the permitting threshold remained at 250 tons for CO2, state permitting authorities, for example, would be paralyzed by tens of thousands of permit applications — far beyond what their current administrative resources could accommodate.

By setting the threshold at 25,000 tons, the EPA proposal would limit the number of facilities facing regulation. EPA explained the impact of the rule this way: