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Published: Wednesday 25 September, 2013

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Environmental Protection Agencys EPA efforts to regulate greenhouse gas emissions. economy, EPAs proposed regulations also raise an important legal question.

EPA has concluded that requiring power plants and other industrial sources to get permits for greenhouse gas emissions leads to absurd results and administrative impossibility. Why, then, is EPA asserting Congress intended it to do this?

EPAs endangerment finding and decision to regulate greenhouse gases GHGs under the Clean Air Act have been challenged in court by industries, states, members of Congress and others. Its high stakes for EPA and the Obama administration.

In considering whether to issue a tailpipe emissions rule in response to a Supreme Court decision, the agency found a scientific consensus in the United Nations Intergovernmental Panel on Climate Change IPCC reports that GHG emissions will endanger human health and the environment. So EPA said the Clean Air Act as interpreted by the Supreme Court required it to regulate GHGs in car and truck emissions to save the world. And they predict that GHG regulation as now proposed by EPA will paralyze the American economy, and simply send our manufacturing jobs to China, Brazil and India, where the resulting GHG emissions will be higher than they would have been in our more efficient factories.

EPA Administrator Lisa Jackson may feel like shes got good options in court. The courts generally defer to EPA on disputed environmental science questions. And once she declared that science leads her to find that GHGs endanger human health and the environment, and that GHGs from tailpipes contribute to that endangerment, then the Clean Air Acts provisions for automobile and truck emissions provisions say she shall make auto manufacturers reduce GHG emissions from vehicle tailpipes. This she has done, in two separate rules.

But she did a lot more, too, and that may have gotten her into legal trouble.

Politically, the EPA Administrator had to put Mr. Obama in a position to tell the world in Copenhagen that even if Congress failed to act on GHG emissions, his Administration would be taking steps to reduce them.

But EPA faced a big legal problem if it went beyond tailpipes. Congress gave EPA the tools for regulating nontailpipe pollutants in the Clean Air Acts stationary source permit programs. These programs cover major sources of regulated pollutants.

When Congress developed the stationary source programs, it made political and practical judgments as to the size of operations that should be required to go through the necessary procedures to get permits. It decided these programs should apply to all major sources of pollutants, including pe designer clothes stores online troleum refineries, steel mills and paper mills.

EPA knew that if it applied the permit programs to GHGs in the way Congress had written them, including an apartmen designer clothes stores online t house furnace or a bakerys oven, there would be thousands more major sources that would be required to get permits, setting off a political firestorm that would put the Clean Air Act permit programs in political jeopardy.

So rather than limiting regulation to mobile sources the tailpipe rule, EPA decided on a bold move and a creative legal theory: It would tailor Congresss permit program and substitute its own political judgments about who should have to get permits, and when.

EPA issued a tailoring rule, acknowledging that regulating GHGs under the permit programs as Congress surely intended EPA to do would lead to absurd results and administrative impossibility. EPA finalized the endangerment finding in time for Copenhagen. The final tailoring rule raised the permit threshold from 250 tons to 75,000 tons for GHGs. designer clothes stores online