Kyle Danish, Tomás Carbonell, and Kevin Gallagher published a chapter in the American Bar Association's, The Clean Air Act Handbook, Third Edition. The chapter not only provides a background of the Environmental Protection Agency's foundation for regulation of greenhouse gas emissions, but also examines how actions by the courts and Congress will correspond with regulatory authorities under the Clean Air Act.
Following the Supreme Court's seminal 2007 decision in Massachusetts v. EPA, the Environmental Protection Agency (EPA) embarked on regulation of greenhouse gas (GHG) emissions under the Clean Air Act (CAA). These efforts accelerated in 2010 after the failure in Congress of legislation that would have supplanted EPA's CAA authorities with a comprehensive, GHG-specific regulatory program.
The potential reach of GHG regulations under CAA goes well beyond the scope of tradition regulation of criteria and toxic pollutants. The number of sources of GHG emissions through the U.S. economy is in the hundreds of millions, and includes everything from motor vehicles and power plants to residential users of natural gas and a variety of commercial facilities and residential buildings. A high number of these sources exceed the current emission thresholds for regulation of conventional air pollutants under the CAA.
Yet the CAA is a less than ideal vehicle for GHG regulation. EPA's authority to regulate GHGs under the CAA using broad market-based approaches is uncertain. In addition, achieving anything close to economy-wide coverage of GHG emissions would require EPA to promulgate numerous regulations and greatly expand the sclae of CAA permitting programs. As of early 2011, the agency has attempted to confine its regulatory attention to large sources of GHG emissions, such as motor vehicles and power plants, while seeking to avoid triggering a cascade of regulations for smaller, heterogeneous sources. However, it is unclear whether such a selective approach is permissible under the CAA.
This chapter (1) provides a background of EPA's initial steps to lay the foundation for regulation of GHG emissios under the CAA, including an overview of the Massachusetts v. EPA decision, the legal controversies raised by California's initiative to establish GHG emission standards for motor vehicles, and regulation of GHG emissions from stationary sources under the prevention of significant deterioration (PSD) permitting program; (2) examines EPA's options for further regulation of stationary and mobile sources under existing CAA authorities; and (3) identifies how actions by the courts or Congress could circumscribe or otherwise interact with EPA's GHG regulatory authorities under the CAA.
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