Wednesday, December 29, 2010

Emissions Rules for Power Plants, Refineries On the Way

By Karin Rives
Staff Writer
Washington - The U.S. government continues to use federal regulatory powers to rein in greenhouse gas emissions, most recently focusing on power plants and oil refineries. The two industries produce nearly 40 percent of emissions in the United States.
Over the next two years, the U.S. Environmental Protection Agency (EPA) is using different tools under the federal Clean Air Act to reduce emissions from factories: new permit requirements for all heavily polluting industry, followed by specific greenhouse gas standards for power plants and oil refineries.
Some members of Congress plan to challenge the new rules, which they say will hurt companies and kill jobs in a tough economy. Several states have already filed lawsuits against the EPA.
Whether they'll manage to block the new policies is uncertain, however.
Some leading legal scholars say the federal government will likely prevail even as a new Congress takes over in January 2011 - for example, through presidential veto power. Others note that the courts usually let federal agencies interpret and implement their own policies, and that legal challenges to the EPA rules therefore may go nowhere.
EPA announced December 23 that it will propose greenhouse gas pollution limits for power plants in July 2011 and for oil refineries in December 2011. Final rules will be issued the following year.
The standards will set levels of pollutants that these industries may emit under the Clean Air Act, the federal law that grants EPA the authority to protect U.S. air quality.
Earlier in 2010, the EPA announced that all new or expanding factories that require Clean Air Act permits to operate must account for greenhouse gas emissions in their permits starting in January 2011 if their operations may release more than 75,000 tons of emissions. Industries regulated under the Clean Air Act must install state-of-the-art technology to limit emissions if they start new operations or modify existing plants.
Beginning in July 2011, any facility that releases more than 100,000 tons of greenhouse gases will need a permit to operate. EPA has said the permitting rules will initially affect some 1,450 factories nationwide.
The rigorous permitting process has historically allowed federal and state governments to reduce other types of air pollution. The plan is now to use this process - along with new pollution standards - to control greenhouse gases that cause climate change.
In a landmark 2007 decision, the Supreme Court ruled that the EPA has the right to regulate greenhouse gas emissions under the Clean Air Act if the agency decides that such pollution is a threat to human health. The ruling has allowed the Obama administration to move forward with new emission standards for cars beginning in January 2011 and, the following year, for factories.
Congress so far has been unable to pass comprehensive climate legislation. By using federal regulations to reduce greenhouse gases, however, federal officials believe the United States can go a long way toward its goal of cutting emissions 17 percent below 2005 levels by 2020.
"We are following through on our commitment to proceed in a measured and careful way to reduce greenhouse gas pollution that threatens the welfare of Americans and contributes to climate change," said EPA Administrator Lisa Jackson. "These standards will help American companies attract private industry to the clean energy upgrades that make our companies more competitive and create good jobs here at home."
Officials in Texas, a state that has refused to update its Clean Air Act permitting process to include greenhouse gases, have said the rules will hurt the state's large energy industry. The state took the issue to court in early 2010, and was joined by several other states with similar concerns.
Their main argument: The EPA is basing its emissions rules on "flawed" data from the United Nations-led Intergovernmental Panel on Climate Change, rather than on science generated by the U.S. government.
Such an argument may not hold up in court because federal courts typically don't interpret standards that govern policies set by federal agencies, said Erwin Chemerinsky, a constitutional law professor and dean at the University of California's Irvine School of Law.
"I think that this is a situation where the courts, including the Supreme Court, are likely to give deference to the EPA and not decide for [themselves] whether greenhouse gases cause global warming, or whether global warming is a threat to human health and welfare," Chemerinsky told
Nor would Congress likely be able to block EPA's emissions rules, said Douglas Kysar, a Yale University law professor and specialist in environmental policy. "Congress could try to amend the Clean Air Act to overrule [the 2007 Supreme Court ruling], but Obama would likely veto such a move," he said.
Plus, any action to halt the EPA's push to reduce emissions would have international consequences for the United States in global climate talks, and possibly prompt more states to take their own regulatory actions - power shifts Congress may not want to risk, said Jim Rossi, a law professor at Florida State University.
"My impression is that EPA's announcement of the greenhouse gas emissions rules regarding new power plants are a modest and reasonable component of a larger set of strategies," he said. They represent "a more comprehensive effort to begin to regulate carbon emissions at the national level."
(This is a product of the Bureau of International Information Programs,) 

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