Marten Law: EPA Issues Final Rule Regulating Greenhouse Gases From New and Modified Sources

   By Svend Brandt-Erichsen and Dustin Till, Attorneys, Marten Law PLLC

“With a one-two punch, EPA on May 13, 2010 issued permitting requirements for larger stationary sources of greenhouse gases (GHGs), just one day after Senators Kerry and Lieberman released cap and trade legislation in the Senate,” write Svend Brandt-Erichsen and Dustin Till. “EPA's so-called “tailoring rule” only applies to larger sources of GHGs, and only if they are required to obtain a construction permit under the Clean Air Act's PSD program, or an operating permit under Title V of the Clean Air Act. In the first two years, EPA estimates that about 900 new and modified facilities a year will be required to obtain permits, mostly coal-fired plants, refineries, cement plants and solid waste landfills. Beginning in 2016, many more sources may be covered by the rule.”

“The EPA rules only impose limits on GHG emissions when a new source is built, or an existing source is modified, and the new construction or modification results in increased GHG emissions above the rule's thresholds. Implementation is set to begin on January 2, 2011", explain Brandt-Erichsen and Till, attorneys at Marten Law PLLC. “Existing sources of GHGs are regulated only if and when they are modified—for example, when they are reconstructed or expanded.”

The authors then point out that “For the first six months of 2011, EPA has limited GHG permitting to sources already required to obtain a PSD or operating permit due to their other air emissions. Those sources would only be required to address GHGs in their permits if their GHG emissions exceed 75,000 tons a year (for the PSD program, these would be new or increased GHG emissions). For two years after that, PSD and operating permits also would be required based only on a facility's GHG emissions, even if not required due to emissions of other pollutants. EPA also committed in the rule to undertake another rulemaking, beginning in 2011, to consider whether to apply GHG permitting requirements to smaller sources.”

“Of course, if Congress enacts climate legislation this year which preempts EPA regulation under the Clean Air Act—as proposed in both the House and Kerry-Lieberman bills—then EPA's regulations may be stillborn,” the authors note. “But without action this year by the Congress or the courts, EPA has now set the rules, and the first PSD permits for GHG emissions will be required in January, 2011.”

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Svend Brandt-Erichsen, a partner at Marten Law PLLC, practices in Alaska and Washington, and has been an environmental lawyer for nearly 20 years. As a lawyer with the Marten Law PLLC, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest.

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