The Future of the Greenhouse Gas Tailoring Rule
| Date | 01 March 2011 |
| Author |
3-2011 NEWS & ANALYSIS 41 ELR 10247
The Future of the
Greenhouse Gas
Tailoring Rule
by James R. Farrell
Jim Farrell is an associate in the law rm of Butler,
Snow, O’Mara, Stevens & Cannada, PLLC, where
his practice focuses on environmental compliance
with an emphasis on Clean Air Act issues.
On January 2, 2011, EPA’s much-anticipated preven-
tion of signicant deterioration and Title V Green-
house Gas Tailoring Rule took eect, expanding the
reach of the Clean Air Act and creating a phased-in
approach to greenhouse gas regulation that initially
targets the nation’s largest emitters but will gradually
encompass additional sources. Numerous challenges
threaten the rule’s long-term viability, including a
regulatory alternative that could gain traction in the
continued absence of a legislative response to the issue
of climate change.
Many have questioned whether regulation of green-
house gas (GHG) emissions in the United States
would ever become a reality; now, the question is
not whether but for how long. Although the U.S. Supreme
Court’s 2007 ruling in
Protection Agency (EPA)1 deserves much of the credit for
EPA’s aggressive response to global warming, congressional
inaction on comprehensive climate change legislation ulti-
mately set in motion the agency-driven agenda that has led
our country to an historic yet extremely controversial cross-
roads in environmental regulation. e Supreme Court’s
conclusion that GHGs constitute air pollutants, as dened
by the Clean Air Act (CAA),2 required EPA to determine
whether GHG emissions from motor vehicles cause or con-
tribute to climate change that is reasonably anticipated to
endanger the public health or welfare; however, the Court’s
requirement for regulatory action did not preclude the pos-
sibility of a legislative response.
Despite the dim prospects for comprehensive climate
change legislation today in the wake of the turbulent
2010 mid-year elections, the political landscape appeared
promising only months before the congressional balance
of power shifted in early November. On June 26, 2009,
the U.S. House of Representatives had narrowly passed
the American Clean Energy and Security Act of 2009 (the
Waxman-Markey Bill) by a vote of 219-212.3 e Wax-
man-Markey Bill featured a cap-and-trade component to
regulate GHG emissions, and the bill would have required
a 17% reduction in GHG emissions from 2005 levels by
2020, and an 83% reduction by 2050.4 In the U.S. Senate,
Sens. John Kerry (D-Mass.), Joseph Lieberman (I-Conn.),
and Lindsay Graham (R-S.C.) had been hard at work on
a comparable climate change bill dubbed the American
Power Act.5 In early 2010, it appeared that the American
Power Act would be able to attract bipartisan support, due
in large part to its provision for expanded oshore drilling,
an early and signicant concession by the bill’s sponsors.
But on a crowded stage of competing political priorities,
the American Power Act was never able to steal the spot-
light. Shortly after the bill’s introduction on May 12, it
languished on the oor of the Senate, overshadowed by
more urgent national headlines, ranging from issues related
1. 549 U.S. 497, 37 ELR 20075 (2007).
2. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
3. , John M. Broder, ,
N.Y. T, June 26, 2009, http://www.nytimes.com/2009/06/27/us/
politics/27climate.html?scp=1&sq=house%20passes%20aces%202009&st
=Search.
4. Id.
5. , Matthew Daly,
Jobs, B.W., May 12, 2010, http://www.businessweek.com/ap/nancial-
news/D9FLI66O1.htm.
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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