EPA prepares to regulate greenhouse gases

Last week, the EPA made a minor rule change with potentially large repercussions. Under the Clean Air Act, the EPA is required to regulate polluters who emit more than 250 tons of pollutants per year. For greenhouse gases, the EPA just raised that floor to 25,000 tons.

This is a good thing. in 2007, the Supreme Court effectively ruled that the EPA has an obligation to regulate greenhouse gases under the Clean Air Act. This ruling was a significant boon to proponents of climate change legislation, as it provides lawmakers with an enormous source of leverage over industry: large polluters can choose to obstruct a climate change bill, but they must then be prepared to live with whatever regulations the EPA cooks up on its own.

Unfortunately, the Clean Air Act is a blunt weapon with which to attack climate change. For starters, the CAA sets awkwardly low emissions thresholds, because it was designed to address a very different class of pollutants. 250 tons may represent a lot of sulfur dioxide, but it’s a trivial amount of carbon dioxide. This low threshold has provided ample ammunition to demagogues, who merrily warn of EPA regulation of churches, dry cleaners, and barbecues.

As an important step in refitting the CAA for its new task, the EPA raised the threshold for greenhouse gases high enough that it only applies to large sources — the utilities and industrial polluters that would also be regulated under a cap-and-trade program. This change alone doesn’t make the CAA a great tool for regulating greenhouse gases, but it does at least begin to lay a path forward if Congress fails to act. It also gives the U.S. something to talk about at the international climate negotiation at Copenhagen.

Naturally, industry groups have been apoplectic over the change. They want the CAA to continue to apply to mom-and-pop shops, because they’re counting on the ensuing political backlash against any form of environmental regulation. These groups claim that the EPA lacks authority to override limits set by congressional mandate, although in actual practice regulatory agencies have a fair amount of discretion in how they apply rules. Expect a wave of lawsuits to follow.

These regulatory skirmishes can get a bit Shakespearean, but they do matter quite a bit. Passage of climate change legislation is, it pains me to say, by no means an assured thing. In the event that the Senate bill fails, the EPA will be required to act. From an environmental and economic perspective, it’s important that the agency perform this regulatory function as well as it can, given the tools at its disposal. And from a political perspective, it’s critical that the agency move swiftly, so that pressure continues to build for a congressional bill.

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