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Monday, March 7, 2011

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

James E. McCarthy
Specialist in Environmental Policy

Larry Parker
Specialist in Energy and Environmental Policy

The Environmental Protection Agency’s promulgation of an “endangerment finding” for greenhouse gas (GHG) emissions in December 2009, and its subsequent promulgation of GHG emission standards for new motor vehicles on April 1, 2010, have raised concerns among some in Congress. As a direct result of these first steps, the agency is now proceeding to control GHG emissions from stationary sources as well, including power plants, manufacturing facilities, and others. Stationary sources account for 69% of U.S. emissions of greenhouse gases. If the United States is to reduce its total GHG emissions, as President Obama has committed to do, it will be necessary to address these sources.

EPA’s regulations limiting GHG emissions from new cars and light trucks have triggered at least two other Clean Air Act (CAA) provisions affecting stationary sources of air pollution. First, effective January 2, 2011, new or modified major stationary sources must undergo New Source Review (NSR) with respect to their GHGs in addition to any other pollutants subject to regulation under the CAA that are emitted by the source. This review requires affected sources to install Best Available Control Technology (BACT) to address their GHG emissions. Second, all major sources of GHGs (existing and new) will have to obtain permits under Title V of the CAA (or have existing permits modified to include their GHG requirements). Beyond these permitting requirements, because stationary sources, particularly coal-fired power plants, are the largest sources of greenhouse gas emissions, EPA is likely to find itself compelled to issue endangerment findings under other parts of the act. For example, in December 2010, EPA reached settlement agreements with numerous parties under which it will promulgate final decisions on New Source Performance Standards (NSPS) for electric generating units by May 2012 and for petroleum refineries by November 2012.

EPA shares congressional concerns about the potential scope of these regulations, primarily because a literal reading of the act might require as many as 6 million stationary sources to obtain permits. Thus, on May 13, 2010, the agency finalized a “Tailoring Rule” that focuses its resources on the largest emitters while deciding over a six-year period what to do about smaller sources.

Many in Congress have suggested that EPA should delay taking action on these sources or should be prevented from doing so. Currently, there are seven bills introduced and one discussion draft in circulation in the 112
th Congress that would delay or prevent EPA actions on greenhouse gas emissions. In February, the text of one bill, H.R. 153, was added to the Full-Year Continuing Appropriations Act, 2011 bill (H.R. 1) during floor debate on a 249-177 vote.

This report discusses elements of this controversy, providing background on stationary sources of greenhouse gas pollution and identifying options Congress has at its disposal should it decide to address the issue. The report discusses four sets of options: (1) resolutions of disapproval under the Congressional Review Act; (2) freestanding legislation delaying or prohibiting EPA action; (3) the use of appropriations bills as a vehicle to restrain EPA activity; and (4) amendments to the Clean Air Act, including legislation to establish a new GHG control regime.

Date of Report: February 22, 2011
Number of Pages: 19
Order Number: R41212
Price: $29.95

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