Epa Releases 1000-Page Plan

EPA RELEASES 1000-PAGE PLAN TO REGULATE ENTIRE ECONOMY Misuse of the Clean Air Act will lead to “environmental condemnation” of business operations

What happened? On July 11, 2008, the U.S. Environmental Protection Agency (EPA) issued an Advance Notice of Proposed Rulemaking (ANPR) on greenhouse gases. EPA drafted the ANPR partly in response to the Supreme Court’s ruling in Massachusetts v. EPA, which directed EPA to determine whether CO2 and other greenhouse gases endanger public health or welfare.

What is the point? Most ANPRs are general requests for public comment, and are issued prior to the making of any real decisions by an agency. In this ANPR, EPA sets forth over a thousand pages of Clean Air Act programs it plans to use to comprehensively control the American economy. After EPA receives public comments in response to the ANPR, EPA will issue a Notice of Proposed Rulemaking. Comments are again taken, the rule is finalized, and EPA’s final decision will become the law of the land.

What does EPA propose? The ANPR sets forth in painful detail EPA’s roadmap to control all facets of the economy, all in the name of global warming. Virtually everyone and everything emits carbon dioxide, and the ANPR seeks to use the Clean Air Act to regulate it all. For instance:

 The ANPR contemplates setting National Ambient Air Quality Standards (NAAQS) for greenhouse gases. EPA currently sets NAAQS for six criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. NAAQS are set by EPA and implemented by states, and EPA is not permitted to consider costs of implementation in setting NAAQS. Penalties for being in NAAQS “non-attainment” include loss of federal highway and transit funding, restrictive permit requirements that deter companies from building new manufacturing plants or modifying existing ones, and in some cases special requirements for vehicles, fuels, commercial and consumer products sold in the area. States and counties in non-attainment are essentially “redlined” and lose business permanently.

 The ANPR contemplates the creation of additional programs for cars and trucks. These programs will be similar to the fuel economy standards and renewable fuels mandate signed into law in 2007. The renewable fuels mandate has been widely criticized, and is already subject to debate over a waiver less than eight months into the program. Automakers have repeatedly stated that they will be unable to meet stricter fuel economy standards than those signed into law last year under the same or similar time constraints. If those programs are any indication, any further on-road programs will be extremely costly and difficult to implement.  The ANPR seeks to regulate non-road sector vehicles and engines, including but not limited to planes, trains, ships, boats, farm tractors, construction equipment, farm and mining equipment, off-road RVs, lawn mowers, garden equipment, portable power generators, forklifts, small construction machines, and logging equipment. Proposed options include engine and equipment redesigns and operational changes.

 The ANPR contemplates the creation of New Source Performance Standards (NSPS) for stationary sources in industrial categories that “cause or contribute significantly to air pollution.” NSPS dictate the level of emissions that these stationary sources may produce. Categories already subject to NSPS for other pollutants include boilers, petroleum refineries, landfills, turbines, and wastewater. Because everyone and everything emits CO2, NSPS for greenhouse gases are potentially limitless.

 Perhaps most troubling, if EPA carries out any of the regulation of CO2 it proposes in the ANPR, it will trigger Prevention of Significant Deterioration (PSD), a costly and time-consuming permitting requirement that will apply to over one million mid-size and large buildings and will literally stop construction nationwide. Any building that emits more than 250 tons per year of CO2 (essentially any building over 100,000 square feet) will be forced to obtain a PSD permit for CO2 prior to any new construction or modification. Energy and Commerce Chairman John Dingell recently called the trigger of PSD for CO2 a “glorious mess.”

What is the impact of the ANPR? Of all of climate change schemes currently being proposed or implemented at the federal or state level, EPA’s ANPR is by far the worst. From a regulatory perspective, implementation of all the programs in the ANPR will be even more difficult than those proposed by the Lieberman-Warner Climate Security Act, which itself was a regulatory nightmare. Many of the programs in the ANPR, if implemented, will be impossible for American businesses to comply with in a cost- effective or timely manner. This “impossibility of performance” will force many of these companies will be forced to stop operating, sometimes permanently. EPA will have taken complete control of the economy, with Americans feeling the pain from “environmental condemnation.”

Even worse, all of the programs proposed by EPA in the ANPR may not have a material impact on global CO2 concentrations. Global climate change is, by its nature, a global issue. However, the ANPR proposes only domestic constraints. Many of the so-called reductions made by the programs outlined in the ANPR will be offset by continuing increases of emissions in China, India and the rest of the world. The ANPR will cost American taxpayers a staggering amount of money, and could ultimately make very little impact on global climate change.

EPA itself is ill-equipped and ill-financed to implement the complex set of proposals set forth in the ANPR. Traction in the face of such complexity will require many thousands of new government payroll employees, few of whom will from one day to the next have clear direction. And for all this trouble, everyday citizens will be burdened to no good end. Millions of businesses, both large and small, will be drawn into a tangled web of poorly-understood regulatory obligations and will be burdened with costs and reporting requirements they never had to consider before. Thousands of businesses and jobs are sure to be lost, and projects will be halted, perhaps forever.

What can you do? The ANPR is not a proposed or final rule; it is merely a request for comments. However, it is an opportunity to communicate all of the facts—good and bad —to EPA and, perhaps more importantly, to both the current President and our next President. Once the ANPR is published in the Federal Register, all members of the American public are encouraged to submit written comments. Take this opportunity to let EPA know it cannot take over the American economy!