EPA Carbon Pollution Rule Clears Up “Murky” Problem

Today the Environmental Protection Agency issued rules to curb carbon pollution from big power plants and other big polluters under the Clean Air Act, while at the same time assuring millions of small businesses – from mom and pop operations, to farms, to mid-sized manufacturing concerns – that they have nothing to worry about.

The EPA rules announced today are the next step forward in carrying out the Supreme Court’s landmark 2007 decision, in Massachusetts v. EPA, that carbon dioxide and other heat-trapping greenhouse gases are air pollutants subject to control under the Clean Air Act.  Last December, the agency responded to the Supreme Court by determining that CO2 and other greenhouse gases endanger our health and our environment.  In April, acting together with the Department of Transportation and in concert with California, EPA announced new standards to cut greenhouse gases and improve gas mileage from new cars, SUVs, and light trucks.

Now that EPA has issued its clean car standards, certain other things are set to happen automatically under the Clean Air Act.  The most important is that when companies build or expand big pollution sources -- power plants or oil refineries, for example -- they will have to install the "best available control technology" (BACT) for carbon dioxide and the other global warming pollutants. 

This is nothing fancy.  Large new or expanded facilities simply have to use available and affordable control measures to minimize how much more carbon pollution they will add to our overburdened skies.  It's nothing more than they've done for decades for other dangerous pollutants like sulfur dioxide. 

The EPA rules issued today (together with one issued at the end of March) address two wrinkles in applying the BACT requirement to carbon pollution. 

The first issue is that CO2 comes from industrial sources in much greater volume than other pollutants.  If EPA applied the traditional “cut-off” for separating large sources from smaller ones – 250 tons of pollution per year – it would end up covering lots of much smaller sources of CO2 than anyone ever intended would have to meet the BACT requirement.  So EPA has “tailored” its rules by setting a new, higher cut-off level for greenhouse gases.  Last fall EPA proposed to set the threshold at 25,000 tons per year.  After taking public comment on what kinds of sources emit what amounts of CO2, EPA determined that a 25,000 ton threshold would cover smaller sources than it originally thought and many more than it intended.  

So EPA’s final rules include higher thresholds and will take effect in several phases, starting with the biggest sources first.  The program will start next year by applying only to sources that are already subject to BACT for other pollutants.  If those sources also will increase emissions by 75,000 tons per year of CO2 (or the equivalent amount of another greenhouse gas), then BACT will be required for that pollutant too.  And starting in July of next year, the program will also apply to some additional sources (i.e., ones without major emissions of other pollutants) if they will add 100,000 tons of CO2.  (I will not explain all the permutations here; they are laid out in this EPA fact sheet.) 

The second issue is when these BACT requirements should kick in.  The Clean Air Act says they apply when a pollutant is “subject to regulation” under other provisions – in this case, the car standards.  In March EPA issued a ruling that the BACT requirement should start applying to greenhouse gases when the car standards start applying to new cars -- i.e., at the start of the 2012 model year in January 2011.  That will give EPA, the states (which carry out the BACT requirement in most cases), and industry time to prepare for smooth implementation.

So why does my title refer to a “Murky” problem?  For those of you who haven’t figured it out already, I’m referring to Senator Lisa Murkowski and her proposal to stop all efforts to curb carbon pollution.  She has proposed to do this by vetoing EPA’s December endangerment finding through a “resolution of disapproval” under the Congressional Review Act.

Senator Murkowski introduced her resolution in January.  She is now said to be planning to call it up for a vote on the floor of the Senate next week – possibly on May 19th, the one-year anniversary of the White House Clean Car Peace Treaty, when a landmark agreement was reached by the President, the car makers, labor, the states, and environmentalists on the clean car standards I described above. 

The rules allow her an up-or-down majority vote, with limited debate and no opportunity to filibuster.  Counting herself, Senator Murkowski has 41 supporters (all the Republicans except Senators Olympia Snowe, Susan Collins, and Scott Brown, plus Democratic Senators Mary Landrieu, Ben Nelson, and Blanche Lincoln). 

But she needs 51.  Murkowski has been struggling to get more support because, as I’ve explained here, the resolution puts Senators in the doubly awkward position of denying global warming science and stopping the clean car regulations that enjoy support from the entire auto industry and the United Auto Workers.

The EPA “tailoring” rule may be the Murkowski resolution’s last straw, because it knocks the legs out of all the phony arguments that EPA is coming after mom and pop bakeries and hot dog stands.  Instead, EPA is focusing on the biggest polluters in the United States and asking them to do no more than apply the best available and affordable pollution controls, something that they’ve done for decades on other pollutants.

Today’s action should put an end to the fear-mongering, because it shows that EPA is doing its job under the Clean Air Act responsibly and thoughtfully, to protect public health and the environment from the dangers of global warming. 

So next week, if Senator Murkowski asks for a vote, we hope and expect a majority of the Senate will vote her resolution down.