National  Tribal  Air  Association   

Efforts by EPA to Control and Reduce Greenhouse Gas Emissions Remain Strong

The Senate and House of Representatives have been leading separate efforts over the past few years to push climate change legislation across the proverbial finish line so as to set a new tone for America, serving at the international leader in making significant reductions to existing greenhouse gas (GHG) emissions.

Unfortunately, these efforts have fallen short and will likely move at a snail’s pace during the next Congress. What has not fallen short, however, are efforts on the part of the U.S. Environmental Protection Agency (EPA) to effectuate positive controls and reductions of GHG emissions. Some of the Agency’s plans, particularly those associated with the air program, have already begun to move forward whereas others are scheduled to go into effect at late as 2016. Of course, Congress can intervene to some degree and affect EPA’s efforts such as not providing the Agency with adequate funding or passing legislation that prevents regulation of GHG emissions under the Clean Air Act (CAA). Until such time that this occurs, however, climate change will continue to be a top priority for the EPA which will end up benefiting Indian Tribes that are impacted by such change on a daily basis.

Some of the activities being taken by the EPA to control and reduce GHG emissions will have direct effects on the activities of Indian Tribes whereas others will not. The following is a list of the activities being taken by the Agency which may not be fully inclusive:

2009

Greenhouse Gas Reporting Rule[1]

This EPA rule requires facilities emitting 25,000 tons of carbon dioxide (CO2) or more, about 10,000 facilities in all, to report their emissions to the Agency on an annual basis. What ends up being covered under this rule is approximately 85 percent of the nation’s GHG emissions. Some revisions to this rule have also been made since it was finalized in October of last year.

To read about these changes and the reporting rule itself, please go to

http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

Endangerment Finding[2]

In Massachusetts v. EPA, [3] the U. S. Supreme Court held that the EPA has the authority to regulate GHG tailpipe emissions from motor vehicles, but to do so, the Agency must finds that these emissions “cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare.” In other words, the EPA must determine if the science warrants an “endangerment finding” for GHG emissions, a formal ruling that finds these pollutants threaten human health and/or the environment. If such a finding is made, the Agency then becomes obligated to mitigate any threat by reducing such pollutants from GHG-emitting sources.

The EPA subsequently made such a finding in December of last year under section 202(a) of the CAA, a finding based on an extensive body of peer-reviewed science holding that elevated levels of GHG emissions (e.g, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride) are the result of human activity that endanger “the public health and welfare of current and future generations.” It also found that “without substantial and near-term efforts to significantly reduce emissions,” the accumulation of these GHG emissions will continue and “lead to ever greater rates of climate change.” Based on these findings, the Agency was able to move forward on regulations to address GHGs generated by motor vehicles.

To read the endangerment finding in full, please go http://www.epa.gov/climatechange/endangerment.html.

2010

Light-Duty Vehicle Greenhouse Gas Emission Standards (Part One)[4]

The EPA and Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) finalized fuel economy standards for new light duty vehicles, the largest increase in such standards in three decades, along with the first-ever national standards for GHG tailpipe emissions. These fuel economy and GHG emission standards require a combined 34.1 miles per gallon (mpg) and 250 grams of CO2 per mile in model year 2016. It is because of the CO2 emissions requirement, achievable through compliance flexibilities, that will ultimately end up raising fuel standards to 35.5 mpg, leading to nearly 30 percent less than the same emissions produced by the average vehicle currently in place.

To read about the new fuel economy and GHG emissions standards, please go to

http://www.epa.gov/otaq/climate/regulations.htm.

Tailoring Rule[5]

As a result of EPA making GHGs emitted by light-duty vehicles “subject to regulation” under the CAA, similar regulations for stationary sources were triggered under the Act’s Prevention of Significant Deterioration based on a memorandum issued by former Agency Administrator Stephen Johnson[6] and reaffirmed by the EPA in April of this year.[7] The Agency then elected to begin regulation of GHG emissions for stationary sources on January 2, 2011, the start of the first model year (e.g., 2012) to which the light-duty vehicle GHG emissions standards will apply.

To sufficiently regulate the GHG emissions of stationary sources in accordance with the applicable statutory thresholds for the CAA’s PSD and Title V programs, namely 100 and 250 tons per year (tpy), a sudden and dramatic increase in the number of such sources subject to these programs based on their GHG emissions would be required. In turn, permitting authorities would face administrative nightmares in trying to bring so many sources under regulatory oversight, likely leading to a situation in which many of these sources would either operate outside the bounds of the law or simply not function at all because of the long delays in receiving permits. The EPA therefore chose to take the following phased-approach in regulating the GHG emissions of stationary sources under the PSD and Title V programs, and using a facility threshold of at least 75,000 tpy:

August 12, 2010

The EPA proposed two rulemakings related to state and federal responsibilities for permitting stationary sources based on their GHG emissions and under the PSD program of the CAA. The first rulemaking involves a SIP call which would require those states lacking the authority to apply PSD permits to GHG emissions under their already approved CAA implementation plans to revise these plans to cover such emissions.[8] The second rulemaking contains a proposed FIP under which the Agency would issue PSD permits for GHG emissions in states lacking the authority to do so.[9] According to the Federal Register notice for this second rulemaking, the FIP would not apply to Indian Country, leaving one to wonder if and how stationary sources on Tribal lands would be regulated for their GHG emissions. It is a matter that Tribes and their representatives might want to discuss with EPA staff.

January 2, 2011

PSD and Title V permits will be required for new and modified sources already subject to permitting requirements because of other pollutants. Modified sources increasing their GHG emissions to 75,000 tpy or more would also be required to determine the appropriate best achievable control technology (BACT) for such emissions.[10]

July 1, 2011 through June 30, 2013

PSD permitting requirements will cover new sources emitting 100,000 tpy and modified sources emitting 75,000 tpy of GHGs or greater, regardless if they exceed thresholds for any other pollutants. Title V operating permit requirements will cover sources emitting or with the potential to emit 100,000 tpy of GHGs or greater.

July 1, 2012

The EPA is expected to issue a supplemental notice in 2011 regarding next steps for stationary source regulations which is expected to be finalized in July 2012.

July 1, 2013

If the EPA decides to continue and move forward with a tailoring rule, the Agency will not require sources emitting GHG emissions below 50,000 tpy to be permitted. Associated regulations would begin to be enforced in July 2013.

April 30, 2015

The EPA is expected to release a study by this date that further evaluates the regulation of stationary sources.

April 30, 2016

This would be the earliest possible date that the EPA would establish permitting requirements for stationary sources emitting under 50,000 tpy of GHGs.

Light-Duty Vehicle Greenhouse Gas Emission Standards (Part Two)

The EPA and NHTSA are expected to jointly issue a notice of intent in September of this year to propose a rule similar to one finalized earlier this year that established more stringent fuel economy standards for new light duty vehicles and the first-ever national standards for GHG tailpipe emissions for model years 2012-2016. The forthcoming rule would cover vehicles for model years 2017-2025.

Final GHG Reporting Rule for Injection and Geologic Storage of CO2[11]

An EPA proposal that would cover the injection and geologic storage of CO2 is expected to be finalized in October of this year and will likely include reporting requirements for those facilities injecting CO2 underground.

The aforementioned actions on the part of the EPA reflect any Agency deeply committed to controlling and reducing GHG emissions. There are other actions being considered by the EPA such as establishing GHG new source performance standards for a number of source categories like petroleum refineries, and establishing GHG tailpipe emissions for heavy and medium duty trucks. To report on these actions, however, would be premature as the Agency is still formulating its thoughts on such matters. What is important to note is that the EPA continues to focus its rulemaking and programmatic efforts on GHG emissions, and as such, Indian Tribes and their representatives should keep a watchful eye on such efforts so as to make sure that their interests and concerns are being addressed. And as noted above, one item of possible concern is how the GHG emissions of large stationary sources in Indian Country will be addressed, which creates an excellent opportunity for dialogue between Tribes and the EPA.