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EPW Policy Beat: Risky Legal Schemes
March 27, 2009

Posted by: Matt Dempsey (202)224-9797




EPW Policy Beat: Risky Legal Schemes



 It’s a common refrain from environmental groups that, over the last eight years, the Bush Administration’s regulatory agenda was based on “legally risky” interpretations of the Clean Air Act.  For these groups, any deviation from strict construction of the Act amounted to “legal sabotage,” according to a 2002 NRDC press release.  One state attorney general, in filing a lawsuit against EPA over changes to improve the New Source Review program, explained that the “fight in court and elsewhere will be to uphold the letter and spirit of the Clean Air Act, endorsed by the first Bush Administration and now eviscerated by the second” [emphasis added].  Another such official said, “The Bush Administration is attacking the Clean Air Act, which has been a cornerstone of our national commitment to environmental cleanup for two generations.” Link  


FACT: When it comes to regulating greenhouse gases under the Clean Air Act, these same groups, in hopes of avoiding a political backlash, have now conveniently dispensed strict construction, promoting instead interpretive “flexibility” and innovative “alternatives,” all of which violate the “letter and spirit” of the Act and contain significant legal risk.   To wit: because hospitals, schools, farms, commercial buildings, and a host of other small sources emit more than 250 tons per year of CO2—a limit expressly mentioned in the statute—they will be required, once an endangerment finding is made and CO2 becomes a regulated pollutant, to obtain costly, burdensome pre-construction permits for their activities.  But environmental groups dismiss legal concern about the clear 250 ton limit as “a smokescreen,” and propose “exemptions,” “deferrals,”  “general permits,” and increases in the 250-ton limit by regulatory diktat.  As the Clean Air Task Force put it in comments on the ANPR, these “options” to get around the 250 ton limit “are promising.”  But as clean air attorney Peter Glaser has explained, “The [250 ton] threshold is statutory…What possible meaning could Congress have had for the number 250 other than 250?”  Further, Glaser notes that “the statutory language is mandatory and does not leave any room for EPA to exercise discretion or create exceptions.”  Link   In short, unless Congress exempts them, there’s no way out for schools, assisted living facilities, and thousands upon thousands of small businesses.           

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