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Monday, March 4, 2013

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

James E. McCarthy
Specialist in Environmental Policy

As a direct result of 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 in 2010, the agency has proceeded to control GHG emissions from new and modified stationary sources as well. Stationary sources, including power plants, refineries, manufacturing facilities, and others 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 reduce emissions from these sources.

EPA’s regulations limiting GHG emissions from new cars and light trucks automatically triggered two Clean Air Act (CAA) provisions affecting stationary sources of air pollution. First, since 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, major sources of GHGs (existing and new) must now obtain permits under Title V of the CAA (or have existing permits modified to include their GHG requirements).

Beyond these permitting requirements, EPA has begun the process of establishing emission standards for large stationary sources of GHG emissions under the act. In December 2010, EPA reached settlement agreements under which it was required to promulgate final decisions on New Source Performance Standards (NSPS) for electric generating units (EGUs) by May 2012 and for petroleum refineries by November 2012. These deadlines have not been met.

EPA shares congressional concerns about the potential scope of these regulations, primarily because a literal reading of the act would have required as many as 6 million stationary sources to obtain permits. To avoid this result, 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 any stationary sources or should be prevented from doing so. There were at least 10 bills introduced in the 112
th Congress that would have delayed or prevented EPA actions on greenhouse gas emissions. In February 2011, the text of one bill, H.R. 153, was added to the Full-Year Continuing Appropriations Act (H.R. 1) during floor debate, on a 249-177 vote. H.R. 1 passed the House, February 19, but failed in the Senate, March 9, 2011. On April 7, 2011, the House passed Representative Upton’s H.R. 910, which would have repealed EPA’s endangerment finding, redefined “air pollutants” to exclude greenhouse gases, and prohibited EPA from promulgating any regulation to address climate change. In the Senate, similar legislation failed to pass, April 6. Since then, EPA has taken no final action on stationary source GHG standards, but final action on EGU standards is expected in 2013. With that, congressional interest may be renewed.

This report discusses elements of this controversy, providing background on stationary sources of GHG pollution and identifying options Congress has at its disposal to address the issues, including (1) resolutions of disapproval under the Congressional Review Act; (2) freestanding legislation; (3) the use of appropriations bills as a vehicle to influence EPA activity; and (4) amendments to the Clean Air Act, including legislation to establish a new GHG control regime.

Date of Report: February 19, 2013
Number of Pages: 18
Order Number: R41212
Price: $29.95

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