EPA ANPR on Carbon Emissions Regulation

Last year, the Supreme Court decided, in a 5-4 ruling, Massachusetts v. Environmental Protection Agency, a case brought by twelve states and several cities against the EPA to force that agency to regulate so-called greenhouse gases, including carbon dioxide, in the context of motor vehicle emissions as a pollutant under the Clean Air Act (CAA). The Supreme Court held that such greenhouse gases are pollutants under the CAA, that EPA can regulate them, and that EPA's grounds for not regulating them were inadequate under the CAA. The majority opinion was authored by Justice Stevens, joined by the rest of Court's liberal wing, and Justice Kennedy. Two dissenting opinions were penned, one by Chief Justice Roberts, which was joined by Justices Scalia, Thomas, and Alito, and the other by Justice Scalia, joined by Chief Justice Roberts, and Justices Thomas, and Alito.

On Jule 11th, EPA released an Advance Notice of Proposed Rulemaking (ANPR) for regulating such gases for public comment. The ANPR, all 589 glorious pages, is available here (pdf).

From the ANPR itself, we learn that the Departments of Agriculture, Commerce, Transportation and Energy have "serious concerns" (their term) about the scope of EPA's proposed regulations, a concern which is apparently reflected by the EPA Administrator himself:

EPA’s analyses leading up to this ANPR have increasingly raised questions of such importance that the scope of the agency’s task has continued to expand. For instance, it has become clear that if EPA were to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, then regulation of smaller stationary sources that also emit GHGs – such as apartment buildings, large homes, schools, and hospitals – could also be triggered. One point is clear: the potential regulation of greenhouse gases under any portion of the Clean Air Act could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land.

This ANPR reflects the complexity and magnitude of the question of whether and how greenhouse gases could be effectively controlled under the Clean Air Act. This document summarizes much of EPA’s work and lays out concerns raised by other federal agencies during their review of this work. EPA is publishing this notice today because it is impossible to simultaneously address all the agencies’ issues and respond to our legal obligations in a timely manner.

I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases. Based on the analysis to date, pursuing this course of action would inevitably result in a very complicated, time-consuming and, likely, convoluted set of regulations. These rules would largely pre-empt or overlay existing programs that help control greenhouse gas emissions and would be relatively ineffective at reducing greenhouse gas concentrations given the potentially damaging effect on jobs and the U.S. economy. [ANPR at pp 5-6.]

Why would the EPA release an ANPR which the EPA Administrator himself apparently disagrees with? From A recent Wall Street Journal op-ed on the EPA's ANPR we learn that

... In December, they went ahead and made their so-called "endangerment finding" on carbon, deputizing themselves as the rulers of the global-warming bureaucracy. The adults in the White House were aghast when they saw the draft. EPA lifers retaliated by leaking the disputes of the standard interagency review process to Democrats like Henry Waxman and sympathetic reporters. Thus the stations-of-the-cross media narrative about "political interference," as if the EPA's careerists don't have their own agenda. So the Administration performed triage by making everything transparent.

The Wall Street Journal op-ed notes the sweeping scope of the potential new regulations:

Justice Antonin Scalia noted in his dissent that under the Court's "pollutant" standard "everything airborne, from Frisbees to flatulence, qualifies," which the EPA appears to have taken literally. It is alarmed by "enteric fermentation in domestic livestock" -- that is, er, their "emissions." A farm with over 25 cows would exceed the EPA's proposed carbon limits. So would 500 acres of crops, due to harvesting and processing machinery.

But never fear. The EPA would regulate "farm tractors" too, plus "lawn and garden equipment." For example, it "could require a different unit of measure [for carbon emissions] tied to the machine's mission or output -- such as grams per kilogram of cuttings from a 'standard' lawn for lawnmowers."

In fact, the EPA has new mandates for everything with an engine. There's a slew of auto regulations, especially jacking up fuel-efficiency standards well beyond their current levels, and even controlling the weight and performance of cars and trucks. Carbon rules are offered for "dirt bikes and snowmobiles." Next up: Nascar.

The EPA didn't neglect planes and trains either, down to rules for how aircraft can taxi on the runway. Guidelines are proposed for boat design such as hulls and propellers. "Innovative strategies for reducing hull friction include coatings with textures similar to marine animals," the authors chirp. They also suggest "crew education campaigns" on energy use at sea. Fishermen will love their eco-sensitivity training.

New or modified buildings that went over the emissions limits would have to obtain EPA permits. This would cover power plants, manufacturers, etc. But it would also include "large office and residential buildings, hotels, large retail establishments and similar facilities" -- like schools and hospitals. The limits are so low that they would apply to "hundreds of thousands" of sources, as the EPA itself notes. "We expect that the entire country would be in nonattainment."

If this power grab wasn't enough, "EPA also believes that . . . it might be possible for the Agency to consider deeper reductions through a cap-and-trade program." The EPA thinks it can levy a carbon tax too, as long as it's called a "fee." In other words, the EPA wants to impose via regulatory ukase what Congress hasn't been able to enact via democratic debate.

That's why the global warmists have so much invested in the EPA's final ruling, which will come in the next Administration. Any climate tax involves arguments about costs and benefits; voting to raise energy prices is not conducive to re-election. But if liberals can outsource their policies to the EPA, they can take credit while avoiding any accountability for the huge economic costs they impose.

The comment period on the ANPR runs 120 days. Any new proposed regulations would likely not issue until the next administration. Unfortunately, both presumptive presidential candidates are on record as believing in anthropogenic global warming, so expect lots more regulations over all aspects of the economy. You think the economy's bad now, just wait till the government gets (even more) involved.