The EPA’s Endangerment Finding is a Ticking Time Bomb (Sen. James Inhofe)

On April 17th, the Administration set in motion a ticking time bomb with its release of an endangerment finding for carbon dioxide and five other greenhouse gases. This ruling proposes that carbon dioxide is a dangerous pollutant that threatens the public health and welfare and therefore must be regulated under the 1970 Clean Air Act. This so-called “endangerment finding” sets the clock ticking on a vast array of taxes and regulation that EPA will have the power to impose across the economy, and all with little or no political debate or Congressional control.

They claim, at least for now, to attempt to “organize the chaos” by limiting the impact to motor vehicles, which is a bad enough option considering the state of the auto industry. Any attempt to stretch the Clean Air Act to regulate these gases illustrates the game of Russian Roulette this Administration is playing with the American economy.

They are presenting policymakers with a false choice: Use an outdated, ill equipped and economically disastrous option under the Clean Air Act, or pick another bad option—cap-and-trade—that commits us to requirements for which affordable and reliable technology does not exist. This is not a choice I want for my constituents or the country.

The Wall Street Journal commented in an editorial on this false choice. They argue, “Why [would EPA] confine the rule only to cars and trucks? By the EPA’s own logic, it shouldn’t matter where carbon emissions come from. Carbon from a car’s tailpipe is the same as carbon from a coal-fired power plant. And transportation is responsible for only 28% of U.S. emissions, versus 34% for electricity generation. The EPA is clearly trying to limit the immediate economic impact of the ruling, so as not to ignite too great a business or consumer backlash.

“But their half-measure is also too clever by half. By finding carbon a public danger, the Administrator is inviting lawsuits from environmental lobbies demanding that EPA regulate all carbon sources. Massachusetts and two other states have already sued in federal court to force the EPA to create a NAAQS for CO2.”

For further background on this matter, let me explain. The history behind EPA’s proposed endangerment finding dates back to 1999, when the International Center for Technology Assessment, joined by Greenpeace, the Green Party of Rhode Island, the Earth Day Network, and 15 other organizations, filed a petition (.pdf) with EPA demanding that it regulate greenhouse gas emissions from “new motor vehicles.” These groups urged the “[EPA] Administrator to reduce the effects of global warming by regulating the emission of greenhouse gases from new motor vehicles.” In the landmark Supreme Court case of Massachusetts v. EPA, they successfully argued that auto emissions were causing global warming, which, in turn, was eroding Massachusetts coastline. The remedy, they said, was to control greenhouse gas emissions from cars. All of this begs an obvious question: What effect would EPA regulation of tailpipe emissions actually have on global temperature?

In recent testimony before the House Ways and Means Committee on the climate impacts of regulating carbon emissions, Dr. John Christy of the University of Alabama-Huntsville found that such regulations would be “an undoubtedly expensive proposition” and would have “virtually no climate impact.” Christy calculated, using the IPCC’s own climate models, that even if the entire country adopts these rules, the net impact would be at most one hundredth of a degree by 2100. Further, he said, “even if the entire world did the same, the effect would be less than four hundredths of a degree by 2100, an amount so tiny we cannot even measure it with instruments, let alone notice it in any way.”

Once EPA makes a finding that greenhouse gases endanger public health and welfare under the Clean Air Act, who, specifically, would be affected? As EPA’s Advanced Notice of Proposed Rulemaking (ANPR) makes clear, an endangerment finding would lead to regulations covering nearly every facet of the American economy. In reading through comments filed in the regulatory docket, one is struck by how broadly the Clean Air Act would apply once an endangerment finding is made—especially to previous sources that have never come under control of the Act. EPA received thousands of public comments from various industries and groups that expressed concern and outright opposition—on issues of cost, competitiveness, jobs, and administrative complexity—to greenhouse gas regulation under the CAA. The following excerpts, taken from comments filed on the ANPR, speak for themselves:

American Association of Housing Services for the Aging

The members of AAHSA (www.aahsa.org) help millions of individuals and their families every day through mission-driven, not-for-profit organizations dedicated to providing the services that people need, when they need them, in the place they call home. Our 5,700 member organizations, many of which have served their communities for generations, offer the continuum of aging services: adult day services, home health, community services, senior housing, assisted living residences, continuing care retirement communities and nursing homes.

AAHSA opposes regulation of greenhouse gases under the Clean Air Act. The Clean Air Act is not suited to regulate greenhouse gases, as the EPA administrator and several other federal agencies have opined. In addition, if the EPA regulates greenhouse gases under the Clean Air Act, many AAHSA members could be subject to costly and burdensome Clean Air Act programs. For example, health care facilities with 51,000 square feet or greater would be subject to the Prevention of Significant Deterioration (PSD) permitting requirements. This would require such facilities to get a PSD permit prior to new construction or modifications… Finally, there is also the possibility that health care facilities would need to obtain Title V operating permits from the EPA one year from when greenhouse gases become regulated, which would add to the already stressed budgets of nonprofit health care facilities.

Family Dairies USA

Family Dairies USA is a dairy cooperative with 3600 members located in a six state area in the Upper Midwest of the United, States. Our members are involved in production Agriculture meaning that a majority of them produce the crops that feed the cows that produce the milk which feeds the nation…We are opposed to the current regulations relating to greenhouse gases under the Clean Air Act as it relates to production agriculture.

Title V requires that any entity emitting more than 100 tons per year of regulated pollutant must obtain a permit in order to continue to operate. EPA has no choice but to require these permits once an endangerment finding is made. USDA has stated that any operation with more than 25 dairy cows emits more than 100 tons of carbon and would have to obtain permits under Title V in order to continue to operate if GHG are regulated. Title V is administered by the states, and permit fees (tax) varies from state to state. EPA sets a “presumptive minimum rate” for permits, and that rate is $43.75 per ton for 2008-2009. For states charging the $43 .75 per ton rate, the cow fee (tax) for dairy would be $175 per cow.

The cow tax would impose a significant added cost for our dairy farmers that cannot easily be absorbed…Imposition of the tax will cause many operators to go out of business and would likely raise prices for the products they produce.

Mark Magney, President, Magney Construction

We are a mid-sized construction firm…We employee 30 full time staff and have been in business since 1994. We primarily engage in the construction of Water and Wastewater Treatment Facilities throughout the upper Midwest We believe that the CAA is ill-suited for regulating greenhouse gas emissions, and that EPA should not move forward with a proposed rule or other regulation of greenhouse gas emissions under the CAA. Doing so could easily delay, if not halt, all future building and highway construction. New construction and renovation are vital to our economy and to future improvement of the environmental performance of our nation’s infrastructure, and must be allowed to continue.

According to Peter Glaser, a national legal expert on the Clean Air Act, an endangerment finding will lead to new EPA regulations covering virtually everything, including “office buildings, apartment buildings, warehouse and storage buildings, educational buildings, health care buildings such as hospitals and assisted living facilities, hotels, restaurants, religious worship buildings, public assembly buildings, supermarkets, retail malls, agricultural facilities…and many others.” An array of new development projects could be delayed, perhaps for several years, causing “an economic train wreck.” This conclusion was supported recently by the Heritage Foundation’s Center for Data Analysis, which found that EPA’s new carbon regulations would destroy over 800,000 jobs and result in a cumulative GDP loss of $7 trillion by 2029.

The Administration and other groups have recently argued that these are only scare tactics and that no one is asking EPA to do this. They argue in fact, that EPA has already figured out ways it could avoid sweeping in small sources of CO2. However, when Republicans on the EPW Committee asked the Administration’s nominee who is set to head the EPA Air Office how they plan to manage this, we have not gotten a straight answer.

Our reason to question is not based on scare tactics. Staff uncovered some comments in the proposed record that argued quite differently. The Conservation Law Foundation, in their comments on EPA’s Advanced Notice of Proposed Rulemaking (ANPR) on greenhouse gas regulation under the Clean Air Act, did ask EPA to regulate such sources; moreover, both groups asserted that EPA is required by law to apply the PSD program to sources emitting above 100 or 250 tons per year. No exceptions. Scary indeed.

The Center for Biological Diversity argued, “While it is uncontroversial that EPA should prioritize the largest pollution sources first, one of the reasons that the NSR program will be such an effective tool for reducing GHG emissions is that it applies to a wide array of sources that will emit in excess of the applicable statutory thresholds of 250 or 100 tons per year.” What about claims from some that EPA can simply circumvent the statutory thresholds for, say, schools and hospitals?

They argued, “As a threshold matter, the asserted belief of EPA officials that the statutory requirements are burdensome or not ‘efficient’ as they should be simply does not excuse the agency from following the law. The EPA has no authority to weaken the requirements of the statute simply because its political appointees don’t like the law’s requirements.”

But can’t EPA just invent new thresholds? Commentators argued that “Several of the suggestions that the EPA has advanced are outside the scope of its authority. The EPA has no authority to set higher GHG major source cutoffs and significance levels.” But doesn’t the enormous burden of permitting thousands of small sources give EPA administrative flexibility? “Such administrative issues are not legally cognizable reasons to ignore the statute’s requirements, and should not be allowed to stand in the way of achieving the emissions reductions necessary to avert climate catastrophe.” They argue “the reality of the climate crisis is that we must ultimately reduce emissions from all pollution sources.”

All of this is being proposed as the U.S. attempts to act unilaterally, with the follow-up being that if the U.S. acts, the rest of the world will follow. This is a common argument asserted by proponents of cap-and-trade. No international agreement is possible, they say, unless the U.S. first assumes the burden of mandatory carbon reductions. We now hear that the U.S. can gain “leverage” in international negotiations in Copenhagen later this year if EPA makes a finding that greenhouse gas emissions endanger public health and welfare under the Clean Air Act. Presumably, this means such action will coax China, the world’s leading emitter of CO2, and India, the world’s third largest CO2 emitter, into accepting binding emissions cuts.

Proponents argue that unless we show that we are capable and willing to regulate and limit our emissions, we are not going to get an international agreement. They also argue to the extent that the endangerment finding pushes that process domestically, that’s important for our negotiating partners to know.

FACT: Developing countries, particularly India and China, have stated unequivocally that, regardless of U.S. action, they will never impose carbon straitjackets on their economies, especially as the recession lingers. “If the question is whether India will take on binding emission reduction commitments, the answer is no,” a member of the Indian delegation to the recently concluded UN climate conference in Bonn told The Washington Post. “It is morally wrong for us to agree to reduce when 40 percent of Indians do not have access to electricity.” As an aside, the Indian delegate added, “Of course, everybody wants to go solar, but costs are very, very high.” As the Post pointed out, more than 60 percent of India’s power is generated from coal. “As India rapidly climbs the list of global polluters, analysts say coal will continue to fuel the economic demands of the country’s 1.1 billion people for two decades.” But India “has repeatedly said that it will not compromise on growth by committing to emission reduction goals set by developed nations, which it deems bigger culprits when it comes to pollution.” Rajenda Pachauri, chairman of the Intergovernmental Panel on Climate Change, said India is “very unlikely” to change its official position.