The 112th Congress better not try to block the Environmental Protection Agency’s regulation of greenhouse gases, The New York Times warns not so subtly in its news pages, “E.P.A. Limit on Gases to Pose Risk to Obama and Congress“:

[The] newly muscular Republicans in Congress could also stumble by moving too aggressively to handcuff the Environmental Protection Agency, provoking a popular outcry that they are endangering public health in the service of their well-heeled patrons in industry.

“These are hand grenades, and the pins have been pulled,” said William K. Reilly, administrator of the environmental agency under the first President George Bush.

He said that the agency was wedged between a hostile Congress and the mandates of the law, with little room to maneuver. But he also said that anti-E.P.A. zealots in Congress should realize that the agency was acting on laws that Congress itself passed, many of them by overwhelming bipartisan margins.

The final paragraph is a paraphrase of Reilly’s comments, so who knows if he actually used the invidious word “zealots,” but we’ll assume that he did argue that the EPA is acting on a Congressionally passed law.

That’s just not so. The 111th Congress failed to pass the Waxman-Markey bill or any legislation to regulate greenhouse gases. The Clean Air Act, which the U.S. Supreme Court in Massachusetts v. EPA expanded far beyond its original legislative intent, contained no authority for the EPA to single out specific emitters like refineries and power plants for regulatory limits. The EPA’s “tailoring rule” that does so is an obvious tactic meant to ease the adoption of an economy-controlling regulatory regime for which there is neither constitutional nor statutory authority.

If the Times — and the Obama Administration — were so confident of the story’s thesis, the paper wouldn’t have had to grant anonymity* to a senior official on the weakest of grounds: He, or more likely she, feared being criticized. To wit:
(continue reading…)

From The Texas Tribune, “Texas Leads Resistance to EPA Climate Action“:

Come January, the Environmental Protection Agency will — in theory — begin regulating greenhouse gas emissions around the country for the first time. Large polluters planning expansions must include carbon dioxide and other gases linked to climate change on their permit applications, with broader regulations coming into force over time.

But not if Texas can help it. Attorney General Greg Abbott last week lodged legal challenges in a federal court against EPA actions on multiple fronts, including a reiteration of the state’s long-standing argument against the EPA’s scientific foundation for determining the dangers of greenhouse gas pollution. EPA regulation, Abbott’s document said, “is the most draconian of its kind of any advanced economy in the world” and would damage the Texas economy.

Attorney General Abbott’s news release is, “Texas Files Legal Action To Block Imposition Of EPA Regulations That Threaten Texas Jobs.” Unlike the National Association of Manufacturers, which has also filed three petitions in court challenging the EPA’s attempt to regulate greenhouse gases, Texas’ litigation challenges the EPA’s “endangerment finding.” From the AG:

Court documents filed by the State explain that the EPA’s Endangerment Finding is legally unsupported because the agency outsourced its legally mandated “scientific assessment” to the Intergovernmental Panel on Climate Change (IPCC), which had the objectivity, reliability and propriety of its scientific assessments called into question after a scandal erupted late last year. The State explained that the IPCC – and therefore the EPA – relied on flawed science to conclude that greenhouse emissions endanger public health and welfare. Because the Administration predicated its Endangerment Finding on the IPCC’s questionable reports, the State is seeking to prevent the EPA’s new Rules – and the economic harm that will result from those regulations – from being imposed on Texas employers, workers and enforcement agencies.

More …

• State’s motion for stay of EPA’s Endangerment Finding, Tailpipe Rule and Timing Rule
• State’s motion for stay of EPA’s Tailoring Rule

For more on the NAM’s litigation, check the Manufacturing Law Center’s entries, NAM v. EPA (scroll down).

The National Association of Manufacturers has filed a motion for a stay in the U.S. Court of Appeals for the District of Columbia Circuit on Wednesday seeking to stop the Environmental Protection Agency from regulating greenhouse gas emissions from stationary sources. (Motion available here.)

The NAM’s action is supported by a broad coalition of groups representing business, industry, energy and agriculture. (Listed here as the “movants” in the NAM’s statement of issues  filed with the court).

NAM President John Engler makes the economic case in a news release from the NAM:

If the EPA moves forward and begins regulating stationary sources, it will open the door for the Agency to regulate everything from industrial facilities to farms to even American homes. Such a move would further complicate a permitting process the EPA is not equipped to handle, while increasing costs to the manufacturing sector. Further, the EPA has not done any required analysis of the impact of these rules, and its actions will harm our economic recovery at a time when we desperately need jobs.”

Our nation continues to face an unemployment rate of 9.6 percent. If the EPA is allowed to continue forward with an overreaching agenda that puts additional and unnecessary burdens on manufacturers and drives up energy costs, it will cause economic harm and instill even more uncertainty into our already fragile economy.  These actions will destroy jobs.

The NAM’s action comes in response to proposed EPA regulations generally known as the Tailpipe Rule, the PSD Interpretive Rule (i.e., the Prevention of Significant Deterioration rule, also known as the Johnson Memo), and the Tailoring Rule.

The NAM’s motion for the stay frames the case this way:

In less than four months, a patchwork of EPA actions related to the emissions of greenhouse gases (GHGs) will become effective. Together, those Clean Air Act (CAA) actions—the first GHG mandates in the United States—will irreparably harm Movants and damage all sectors of the economy. EPA itself has called the consequences of its actions “absurd,” affecting 6.1 million sources, introducing $78 billion in annual costs, causing “at least a decade or longer” of permit delays, “slow[ing] construction nationwide for years,” introducing burdens that are administratively “infeasible,” “overwhelming,” and will “adversely affect national economic development,” while impacting sources “not appropriate at this point to even consider regulating.” (continue reading…)

From page three of the final rule, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” the section, “Does this action apply to me?”

Entities affected by this action include sources in all sectors of the economy, including commercial and residential sources. Entities potentially affected by this action also include states, local permitting authorities, and tribal authorities. The majority of categories and entities potentially affected by this action are expected to be in the following groups:

• Agriculture, fishing, and hunting
• Mining
• Utilities (electric, natural gas, other systems)
• Manufacturing (food, beverages, tobacco, textiles, leather)
• Wood product, paper, manufacturing products
• Nonmetallic mineral product manufacturing
• Primary and fabricated metal manufacturing
• Machinery manufacturing
• Computer and electronic products manufacturing
• Electrical equipment, appliance, and component manufacturing
• Transportation equipment manufacturing
• Furniture and related product manufacturing
• Miscellaneous manufacturing
• Waste management and remediation
• Hospitals/Nursing and residential care facilities
• Personal and laundry services
• Residential/private households
• Non-Residential (Commercial)

The final reg helpfully includes the NAISC codes.

You see the list as it appears in the reg, pp 3-5, here.

We took note Thursday of this line from the EPA’s “Fact Sheet” on its new greenhouse gas tailoring rule:

Emissions from small farms, restaurants, and all but the very largest commercial facilities will not be covered by these programs at this time.

Boil it down: The EPA will not regulate emissions from small farms AT THIS TIME.

Soon enough, though.

So what did Secretary of Agriculture Tom Vilsack have to say the implied promise of future regulation of small farms for greenhouse gas emissions? After all, methane is produced by all sorts of farming operations (cows, manure), and it is a potent greenhouse gas.

Secretary Vilsack did issue a statement, but it’s about biomass fuels.

I want to thank the Administrator for agreeing to seek further comment on how to address the greenhouse gas benefits of bioenergy under the Clean Air Act. Energy derived from woody biomass, switch-grass and other sources has potentially enormous benefits for reducing greenhouse gas emissions, developing clean, home-grown energy, and providing economic opportunities for rural America. Markets for woody biomass can also bolster forest restoration activities on both public and private lands that improve the ecological health of our forests

OK. Important issue, but expanding biomass energy conversion is not uppermost on the minds of most farmers. Operating costs and the impact of federal regulations rank higher.

And the EPA’s rule certainly promises a lot of both.

From pages 415-416 of the final rule:

Although the proposal for the Tailoring Rule generally addressed how the statutory requirements for major source applicability (100/250 tpy thresholds) could be phased in in ways that would offer relief to traditional and non-traditional sources, such as residences, farms, small business, and semiconductor manufacturers, it did so by establishing relatively high CO2 thresholds during the early implementation period and lowering the thresholds over time as streamlining mechanisms become available to reduce administrative burdens. We did not propose any permanent exemptions of any kind or temporary exemptions based on source category.

The Environmental Protection Agency has now posted its latest version of greenhouse gas emission regulations on its website, with background and supplementary materials.

Final GHG Tailoring Rule
May 13, 2010 – EPA sets greenhouse gas (GHG) emissions thresholds to define when permits under the New Source Review Prevention Significant Deterioration (PSD) and title V Operating Permit programs are required for new and existing industrial facilities.

• Fact Sheet (PDF) (6pp, 33k)
• Final Rule (PDF) (515pp, 688k)
• Timeline Outlining Permitting Steps under the Tailoring Rule (PDF) (1pg, 79k)
• Summary of Clean Air Act Permitting Burdens With and Without the Tailoring Rule (PDF) (2pp, 445k)

“Tailoring” in this case means the setting of specific emission limits to stationary sites, primarily industrial and energy facilities, thus requiring their adherance to the permitting process. The EPA claims it has the authority to set its own limits under the Clean Air Act, a dubious assertion.

According to the EPA’s fact sheet:

• This final rule “tailors” the requirements of these CAA permitting programs to limit which
  facilities will be required to obtain PSD and title V permits. Facilities responsible for nearly
  70 percent of the national GHG emissions from stationary sources will be subject to
  permitting requirements under this rule. This includes the nation’s largest GHG emitters-
  power plants, refineries, and cement production facilities.
• Emissions from small farms, restaurants, and all but the very largest commercial facilities
  will not be covered by these programs at this time. 

You have to love that “at this time.” They’ll get to you soon enough.

From an EPA media advisory:

TODAY: EPA Assistant Administrator Gina McCarthy to Hold Press Conference Call on Greenhouse Gas Permitting

WASHINGTON – Today, May 13, U.S. Environmental Protection Agency Assistant Administrator Gina McCarthy will hold a press conference call to discuss the final rule on Clean Air Act permitting for greenhouse gases.

The call’s at noon.

Shakespeare’s Julius Caeser comes to mind.

Why, man, he doth bestride the narrow world
Like a Colossus; and we petty men
Walk under his huge legs, and peep about
To find ourselves dishonourable graves.
Men at some time are masters of their fates:
The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings. (1.2.135)

Today the Environmental Protection Agency took another step toward regulating greenhouse gas (GHG) emissions from stationary sources under the Clean Air Act. Administrator Lisa Jackson issued a final decision on the so-called Johnson Memo, which outlines when EPA’s controls on greenhouse gas emissions will actually take effect.  Although the decision states that new regulations will become effective no sooner than January 2011, EPA is clearly preparing to regulate GHG emissions from industrial facilities. According to EPA, “construction and operating permit requirements for the largest emitting facilities will begin when the first national rule controlling GHGs takes effect.” EPA further states that if “finalized as proposed,’’ the tailpipe rule for cars and trucks “would trigger these requirements in January 2011.” This is the earliest date on which vehicles complying with the new emission standards can be sold in the American market, which EPA has argued will “trigger” requirements on industrial facilities.

EPA’s action today not only paves the way for regulating stationary sources but also underscores the uncertainty and complexity of implementing a federal climate policy under the Clean Air Act. Not only is EPA delaying final release of the “tailoring rule” for industrial sources — a rule that regulators have been planning to release by March 31 — but it is also delaying the effective date “until at least January 2012.” (EPA Fact Sheet)

Federal regulators are still attempting to sort through the complexity of regulating industrial sources; in today’s statement, EPA says it will release details surrounding the tailoring rule “later this spring.” In addition, a White House review conducted by the Office of Management and Budget is a prerequisite for finalizing a regulation. If there’s any certainty at all in this complex process, it is that federal agencies are not backing down from their agenda to expand the scope of their regulatory powers.

As the expensive new health care law dominates the public’s attention, EPA continues its relentless drive to impose tighter control over the manufacturing economy. As industry emerges from the most severe recession since the 1930s –- a recession in which the manufacturing sector lost more than 2.2 million high-wage American jobs –- EPA regulators are pursuing an agenda that will dramatically increase energy prices for all U.S. consumers while limiting the public’s energy choices.

During the next 10 months, EPA is expected to impose first-time controls on greenhouse gas (GHG) emissions from industrial sources through the “tailoring rule.” (EPA docket) Regulators also want to ratchet down an air-quality standard for ozone that will impose costly compliance rules on most major U.S. metropolitan areas. This year EPA will also consider reclassifying coal by-products as “hazardous waste,” thereby raising electricity prices. The agency also may seek to impose unachievable emission standards on industrial boilers, which manufacturers use in their plants to expedite production of a variety of goods.

The cumulative cost of these rules is staggering. With respect to the tailoring rule, EPA did not even bother to undertake a detailed economic analysis and concedes that much of the technology to implement GHG controls is nonexistent. Costs of the ozone rule, by EPA’s conservative estimates, could reach $90 billion, most of which will be shouldered by industry through either direct regulation or the passing on of higher electricity costs. The forest and paper products sector estimates that tighter controls on industrial boilers could reach $6.7 billion in capital expenditures, making many of their U.S. operations unprofitable and subject to closure.

Now is not the time to begin piling on additional costs on a sector that traditionally serves as the engine of job-growth and innovation. According to EPA’s own data, we are already making progress in improving air quality for all Americans through current programs, progress that undermines the rationale for moving forward with expansive and unachievable environmental controls.

Federal regulators are moving so aggressively that even state regulators are concerned. During the comment period for the so-called tailoring rule, more than 29 state EPA regulators joined manufacturers and other commenters in urging EPA to slow down its regulatory process. To read an NAM-organized submission from representatives of manufacturing companies, please click here.

Released as it was on December 23, this letter from the Office of Advocacy of the U.S. Small Business Administration to the Environmental Protection Agency received too little attention. The letter, submitted as a comment on the EPA’s proposed rule to regulate the emissions of greenhouse gases from industry sources (the tailoring rule), provides a clear example of where the EPA is cutting corners in its drive to reshape the U.S. economy.

Excerpt from the letter:

EPA has certified that the GHG Tailoring Rule, along with two interrelated rules that will result in the federal regulation of greenhouse gases for the first time, will not have a significant economic impact upon a substantial number of small entities.  We disagree.

As discussed below, whether viewed separately or together, it is clear that EPA’s Clean Air Act greenhouse gas rules will significantly affect a large number of small entities.  EPA was therefore obligated under the Regulatory Flexibility Act to convene a Small Business Advocacy Review Panel (or Panels) prior to proposing these rules.  By failing to do so, EPA also lost its best opportunity to learn how its new greenhouse gas rules would actually affect small businesses, small communities and small non-profit associations.  These small entities are concerned that EPA has not adequately considered regulatory alternatives that could achieve greenhouse gas emission reductions without imposing heavy new compliance burdens on large numbers of small entities.

The letter sites examples of affected entities:

More than 100 small brick manufacturers;

400-500 small foundries;

150 small pulp and paper mills;

Over 100 small coal mines;

80 small lime manufacturers;

350 small municipal utilities;

More than 40 small electric cooperatives; and

At least 16 small petroleum refineries.

The economic impact aside, the most important message in the letter from this official advocacy panel is that the EPA is ignoring the law, the Regulatory Flexibility Act, that requires an assessment of the impact of such a rule on small business. That’s the kind of thing we’re referring to when we call the agency the Imperial EPA.

This letter a great topic for hearings by the House and Senate Small Business Committees.