What to Expect From EPA: Regulation of Greenhouse Gas Emissions Under the Clean Air Act

• Date: 01 May 2010

40 ELR 10480 ENVIRONMENTAL LAW REPORTER 5-2010

C O M M E N T S

What to Expect From EPA:

Regulation of Greenhouse Gas

Emissions Under the Clean Air Act

by Franz T. Litz and Nicholas M. Bianco

Franz T. Litz is a Senior Fellow and Nicholas M. Bianco is a Senior Associate at the World Resources Institute.

As Congress debates comprehensive climate change

legislation, a second line of action is underway in the

United States to regulate greenhouse gases (GHGs).

e U.S. Environmental Protection A gency (EPA) ha s

begun a series of rulemak ings to reduce GHG em issions

under existing provisions of the Clean Air Act (CA A).1

To date, EPA has initiated a number of actions that are

required under the U.S. Supreme Cour t’s 2007 decision in

Massachusetts v. EPA,2 including new emissions standards

for mobile sourc es and preconstruction permitting for new

and modied major stationar y sources under the prevention

of signicant deterioration (PSD) program. EPA has also

signaled that additional regulation may be in store for exist-

ing stationary sources u nder the new source performance

standards (NSPS) program, with ocia l notice coming as

early as spring 2010. e most likely regulatory pathways

are outlined in Table 1:

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

2. 549 U.S. 497, 37 ELR 20075 (2007).

I. Mobile Sources of GHG Emissions

President Barack Obama announced the Administration’s

intention to regulate GHG emissions from new motor vehi-

cles through a joint rulemaking by EPA and the U.S. Depart-

ment of Transportation (DOT ). is joint rulemaking will

be accompanied by a revision of the California Pavley vehicle

standards to make the California standards equivalent to the

federal standards through 2016. e vehicle emissions stan-

dards will be set at a eet average of 250 grams of carbon

dioxide (CO2) per mile, or 35.5 miles per gallon for model

year 2016.

is action on mobile sources follows a 10-year eort that

began in 1999 when a number of advocacy groups led a

petition asking EPA to regulate GHGs from vehicles under

Title II of the CAA. e petition was u ltimately denied by

the George W. Bush Administration’s EPA on the grounds

Table 1. Actions Underway and Likely

Actions Done o r Underway Planned or Like ly in 2010 Possible Futur e Actions

Mobile

Sources

§202 Enda ngerment Finding (Expe cted

3/2010)

Medium and heav y-duty trucks,* aircraf t,

locomotives, a nd marine engines

Joint EPA-DOT Vehicle E missions & Eff‌i-

ciency Stan dards for Light-Duty Vehicles

(Expec ted 3/2010)

Post-2017 motor vehicle stand ards.

(Pavley II st andards underway in CA)

Stationar y

Sources

GHG Reporti ng Rule (Done) New Source Perfor mance Standards for

Cement Kilns

More NSPS s tandards by category of

sources

Prevention of Signif‌icant Deteriora-

tion (PSD ) preconstruction permit ting

(BACT)( Expected 3/2 010)

New Source Perfor mance Standards for

Electric Ge nerating Units

Title V operat ing permit requirements

for major sources

NSPS at St ate Level for Existing

Sources— cap-and-trade or tr aditional

performan ce standards?

Fuels Low Carbon Fuel St andard

* The 2007 Energ y Independence and Securi ty Act requires DOT to develop fuel e conomy standard s for medium and heavy-duty ve hicles.

EPA could follow the pat h it used for light-duty vehicl es, and partner with the D OT to develop these st andards.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.