This post is Part 2 of my examination of EPA’s Tailoring Rule — the Agency’s attempt to amend the Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program so that they can be applied to carbon dioxide (CO2) and other greenhouse gases (GHGs) without spawning an economically-chilling administrative morass. Yesterday’s post argued that the Supreme Court’s decision in Massachusetts v. EPA set the stage for an administrative disaster that EPA rightly describes as “unprecedented” and “absurd.” Today’s post examines the adequacy of the Tailoring Rule as a regulatory relief measure, finds it woefully inadequate, and advises EPA not to oppose legislative action to protect the economy from Mass. v. EPA‘s regulatory fallout.
V. Tailoring Rule: Small Business Protection Is Temporary, Dubious, and Incomplete
Industry is unlikely to challenge the Tailoring Rule, since it aims to shield substantial numbers of small entities from PSD and Title V regulation of CO2 for a period of six years.…
(Note: This column is adapted from a forthcoming article, co-authored with former Virgiania Governor George F. Allen, in the University of Richmond Law Review.)
December 28, 2009 was the final day to submit comments on the Environmental Protection Agency’s (EPA’s) proposed Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule. This is the rulemaking in which EPA proposes to “tailor” the Clean Air Act’s (CAA or Act’s) Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program so that they can be applied to carbon dioxide (CO2) and other greenhouse gases (GHGs) without spawning an economically-chilling administrative morass.
The Tailoring Rule is an eye opener, because it reveals, or rather confirms in spades, that the Supreme Court’s decision in Massachusetts v. EPA has created an almost bottomless well of “absurd results” — disastrous consequences that EPA can avoid only by poaching legislative power and amending the Act.…
Call it an economic train wreck, a constitutional crisis, or legslative thuggery. Litigation-driven regulation of carbon dioxide (CO2) under the Clean Air Act (CAA) is all of the above.
The Supreme Court case of Massachusetts v. EPA (April 2, 2007) has set the stage for a policy disaster. Mass v. EPA’s second anniversary rapidly approaches, and in a Power Point presentation leaked to Greenwire last week, EPA reveals how it plans to respond to the Court. But first, some background on the case and the Pandora’s Box it has created.…