After closing out 2009 with a formal “endangerment finding” for greenhouse gas emissions and a separate rulemaking for first-time regulation of greenhouse gases from industrial sources, the Environmental Protection Agency today announced that it seeks to impose even stricter national standards for ground-level ozone, or smog. These major regulations, taken as a whole, pose a serious threat to the country’s attempt to climb out of the deepest economic downturn since the 1930s.

Today’s action comes less than two years after EPA issued a new standard for ozone in 2008, which already lowered the 1998 standard from 0.84 parts per million (ppm) to 0.75 ppm. Federal regulators are proposing stricter standards despite the fact that EPA’s own data show a 25 percent decline of smog concentrations nationwide from 1980 to 2008.

While federal regulators claim public health as the main rationale for stricter standards, the Administration appears to ignore potential impacts on the health of the economy. According to EPA’s own statistics, which are generally understated, new ozone rules will cost anywhere from $19 billion to $90 billion. When the National Association of Manufacturers advocated against stricter standards in 2007 — proposed even as the 1998 standard was still being implemented — the NAM and its industry partners developed maps showing the potential reach of stricter regulations. According to this 2007 analysis, a standard in the range EPA is proposing, between 0.60 and 0.70 ppm, more than 1,200 counties in all the lower 48 states – except Montana – would carry the regulatory burden of a so-called “non-attainment” designation from EPA. Such a classification means new controls on everything ranging from construction activity (stimulus, anyone?) to transportation fuel blends and emissions from increasingly smaller stationary sources.

The Clean Air Act is broken and susceptible to endless litigation, as today’s announcement will undoubtedly demonstrate. The NAM urges federal lawmakers to implement modern, rational, predictable and streamlined environmental policies that will foster economic growth, while not otherwise penalizing environmental progress. In the context of continued declining ozone levels nationwide, today’s announcement shows that with EPA, no good deed goes unpunished.

Bryan Brendle is Director of Energy and Resources Policy for the National Association of Manufacturers.

Even as the Environmental Protection Agency attempts to replace Congress as the policymaking branch of government with its endangerment finding for carbon dioxide under the Clean Air Act, the agency also pursues other, less prominent but still burdensome regulations. On Tuesday, Jan. 5, for example, the EPA is holding a daylong hearing in Atlanta to take public comment on its proposed regulation to place new restrictions on sulfur dioxide emissions. (EPA news release, EPA’s resource page on sulfur dioxide.)

Bryan Brendle, the National Association of Manufacturers’ Director of Energy and Resources Policy, summarizes the issue and state of play:

• EPA is proposing to strengthen its “National Ambient Air Quality Standard” for emissions of Sulfur Dioxide (SO2) as part of a mandatory review of the standard. Final comments are due on February 8.
• EPA is holding a public hearing on the standard, which is meant to protect vulnerable populations such as asthmatics, in Atlanta on Jan. 5. Sectors most affected by a stricter SO2 standard include the chemical sector, aluminum sector and the petroleum refining sectors.
• EPA’s proposed regulation constitutes one of many, which cumulatively, will have an adverse impact on the recovery of the manufacturing economy.
• EPA is moving forward with this proposed regulation in the wake of its rulemaking on the “tailoring proposal,” which closed on Dec. 28 and a formal “endangerment finding” for greenhouse gases, which occurred on Dec. 7. [See Brendle's testimony to the EPA on the tailoring proposal.]
• In addition to proposed rules for greenhouse gases, EPA is also expected to issue a proposed regulation that will tighten the air quality standard for ozone emissions.

Bottom line:

• EPA’s proposal reflects a deeply flawed process under the Clean Air Act, whereby the agency moves forward with stricter standards for individual pollutants with no regard to economic impacts or even administrative consistency with respect to other rulemakings.

The EPA’s imperial endangerment edict also serves to focus the media on that one issue, the regulation of greenhouse gases, meaning that economy-damaging proposals like the sulfur dioxide rule receive less public attention. Another example: the revised standards for ground-level ozone, a widely reported issue in 2007 and 2008, but largely ignored more recently.

So we hear lots about the Administration emphasizing jobs, jobs, jobs, but not so much about the Administration’s EPA making it more difficult to create jobs, jobs, jobs.

Kim Strassel’s “Potomac Watch” column in today’s Wall Street Journal is based on an interview with Sen. Jim Inhofe (R-OK), ranking member of the Senate Environment and Public Works Committee, reacting to the climate science e-mail controversy. It’s Inhofe who gives Strassel’s column its title, “‘Cap and Trade Is Dead’,” arguing that politics and the now the scientific scandal from East Anglia makes climate-control legislation impossible. That’s Congress, but …

There’s still the EPA, which is preparing an “endangerment finding” that would allow it to regulate carbon on the grounds it is a danger to public health. It is here the emails might have the most direct effect. The agency has said repeatedly that it based its finding on the U.N. science—which is now at issue. The scandal puts new pressure on the EPA to accede to growing demands to make public the scientific basis of its actions.

Mr. Inhofe goes so far as to suggest that the agency might not now issue the finding. “The president knows how punitive this will be; he’s never wanted to do it through [the EPA] because that’s all on him.” The EPA was already out on a legal limb with its finding, and Mr. Inhofe argues that if it does go ahead, the CRU disclosure guarantees court limbo. “The way the far left used to stop us is to file lawsuits and stall and stall. We’ll do the same thing.”

An EPA endangerment finding and implementation of CO2 emission limits through a “tailoring rule” is legally suspect, to be sure, as an attempt by the Executive Branch to rewrite the Clean Air Act. Still, all the statements from the EPA and Administrator Lisa Jackson have pointed in that direction.
More…

• Related commentary in The Telegraph, United Kingdom, by Gerald Warner, “Climategate e-mails sweep America, may scuttle Barack Obama’s Cap and Trade laws.“
• The Wall Street Journal Europe editorializes in “How to Forge a Consensus,” contending in the sub-headline, “The impression left by the Climategate emails is that the global warming game has been rigged from the start.”
• The New York Times reports on Nov. 25, “Businesses in U.S. Brace for New Rules on Emissions.” The story covers President Obama’s announcement of emission reduction targets, made in anticipation of his trip to the Copenhagen climate meeting. It’s OK, although the failure to mention Climategate and the possibility of an EPA endangerment finding seems like pretty big holes.

The Environmental Protection Agency on Wednesday held a daylong hearing in Arlington, Va., on its proposed rule to use Clean Air Act authority to control greenhouse gas emissions from large industrial producers. The NAM’s Bryan Brendle, director of Energy and Resources Policy, represented the National Association of Manufacturers. From his testimony:

EPA’s Strategy Has Legal Flaws, Creates Uncertainty

The EPA is entering uncertain legal territory by proposing to regulate very large facilities at the 25,000 ton per year (TPY) emissions level for GHGs under programs that federal law requires to be regulated at the 100 – 250 TPY level. At the same time, EPA proposes to establish a process by which it will consider ways to regulate even smaller sources, therefore laying the groundwork for even greater expansion of its regulatory power. Furthermore, litigation offers another avenue to regulation of small and mid-sized manufacturers as litigants force EPA to adhere to the requirements of federal law. The CAA [Clean Air Act] does not allow EPA unilaterally to raise the PSD threshold, because the CAA explicitly states that PSD includes “any. . . source with the potential to emit two hundred and fifty tons per year or more of any air pollutant.” 42 U.S.C. § 7479(1). To add to the uncertainty, the tailoring proposal also allows
states to move forward with more stringent permitting requirements, which would lead to the creation of a patchwork of state regulatory programs, leading to compliance obstacles for what would amount to first-time regulations.

Brendle’s complete statement is here.

The second day of hearings is under way in Rosemont, Ill. The EPA has provided a list of speakers. For more on this executive branch agency’s attempt circumvent the policy-making branch of government through regulation, see the EPA’s New Source Review page.

Even as the Senate Environment and Public Works Committee mucks around procedurally with the Kerry-Boxer bill, the Environmental Protection Agency is marching ahead with proposed regulations to restrict carbon dioxide. As the NAM’s new EPA website — www. nam.org/epa — explains:

On September 30, 2009, the Environmental Protection Agency (EPA) announced its proposed “tailoring rule” and outlined its regulations for greenhouse gas (GHG) emissions from large industrial facilities. The EPA proposes to issue permits under its so-called “Prevention of Significant Deterioration” program, in which facilities such as manufacturing plants, power plants and refineries would be required to demonstrate they are using the best technologies to minimize GHG emissions.

This proposed rule is the EPA’s first step toward regulating carbon emissions from large stationary sources that emit more than 25,000 tons of CO2. It also allows the EPA to immediately begin considering lowering the threshold of GHG emissions at their discretion, further expanding the organization’s scope to regulate hospitals, libraries and even American homes. For a manufacturer, it could mean doing something as simple as adding a “plant shift” to the schedule would trigger EPA regulation.

As we’ve noted before, the EPA’s proposal is also a clear case of a regulatory agency trying to set policy by ignoring the statutory requirements for under the Clean Air Act, which is to apply to facilities emitting between 100-250 tons. Regulatory agencies don’t write the law.

The NAM’s website — www.nam.org/epa –includes a draft letter to the EPA, background materials, and a count-down to the deadline: 54 days and counting.