US EPA Administrator Lisa Jackson Sends Letter to West Virginia’s Senator Rockefeller

    On February 22, 2010, U.S. EPA Administrator Lisa P. Jackson sent a letter to West Virginia’s Senator Jay D. Rockefeller IV responding to his concern about the U.S. EPA’s efforts to comply with the Supreme Court’s decision in Massachusetts v. EPA through the regulation of greenhouse gases. Through this letter Jackson identified the following points about the modifications she plans to make on U.S. EPA’s greenhouse gas proposals: 

·    The United States Supreme Court held three years ago in Massachusetts v. EPA that greenhouse gases are air pollution and are subject to regulation under the Clean Air Act. EPA must follow the Supreme Court's holding, as you recognize in your letter.

 

·     By April of this year, I expect to take actions to ensure that no stationary source will be required to get a Clean Air Act permit to cover its greenhouse gas emissions in calendar year 2010.

 

 

·    Based on those anticipated actions, I expect that EPA will phase-in permit requirements and regulation of greenhouse gases for large stationary sources beginning in calendar year 2011. In the first half of 2011, only those facilities that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications.

 

 

·     Further, I am expecting that greenhouse gas emissions from other large sources will phase in starting in the latter half of 2011. Between the latter half of 2011 and 2013, I expect that the threshold for permitting will be substantially higher than the 25,000-ton limit that EPA originally proposed. In any event, EPA does not intend to subject the smallest sources to Clean Air Act permitting for greenhouse-gas emissions any sooner than 2016.

 

• You asked in your letter what the result would be if Senator Lisa Murkowski's resolution of disapproval of EPA's endangerment finding were enacted. One result would be to prevent EPA from issuing its greenhouse gas standard for light-duty vehicles, because the endangerment finding is a legal prerequisite of that standard. The impacts of that result would be significant. In particular, it would undo an historic agreement among states, automakers, the federal government, and other stakeholders. California and at least thirteen other states that have adopted California's emissions standards likely would enforce those standards within their, jurisdictions¹, leaving the automobile industry without the explicit nationwide uniformity that it has described as important to its business². 

Letter from Administrator Jackson to Senator Rockefeller IV of 2/22/2010, at 1-2. 

    It remains to be seen whether this response ends the dialogue or provokes more questions from the several senators who endorsed the letter. 

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.