EPA Proposes to Find CO2 is a Danger to Public Health

The Environmental Protection Agency has sent a proposal to the White House finding that carbon dioxide is a danger to public health.  This finding, if it becomes final, could result in the implementation of the Clean Air Act to enforce regulation of CO2 as a pollutant.  Discussion is now ongoing about whether EPA will be forced to regulate CO2 under the Clean Air Act or if this is a political move to force Congress to quickly address greenhouse gases from the perspective of addressing climate change.  President Obama has referred Congress to a cap and trade program for greenhouse gases.

 

What happens if the Clean Air Act is triggered?  Some believe EPA will be required to establish a National Ambient Air Quality Standard (“NAAQS”) for CO2.  If EPA proposes a human health standard, then there would be 10 years maximum to achieve attainment.  Depending upon the level of the standard, the entire country could be designated as non-attainment.  The result would be the imposition of nonattainment new source review (“NSR”) triggering the achievement of Lowest Achievable Emission Rates (“LAER”) and offsets.  Also, at issue would be how a state could maintain attainment or cure nonattainment of a globally circulating pollutant.  The Prevention of Significant Deterioration (“PSD”) program and nonattainment New Source Review (“NSR”) would trigger permitting thresholds of 250 tpy/100 tpy respectively.  Very small sources would be caught by those thresholds to include office buildings, resulting in a massive permitting burden for regulators.

 

EPA may choose to establish a higher threshold, prioritize, use a “general permit” system, or create a “presumptive BACT”.

 

Administrator Lisa Jackson has stated, “Based upon my current knowledge, I do believe the CAA leaves EPA discretion, in the event of regulating greenhouse gas emissions under the Act, to do so in a way that does not necessitate direct regulation of all emissions sources regardless of their size.”

 

No doubt, litigation will ensue to test all of these issues and more.

 

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC, (304) 340-1019 or

kbeckett@jacksonkelly.com. For more information on the author see here.