Posted by: Matt Dempsey (202)224-9797

As EPA’s proposed endangerment finding filters through the blogosphere, EPW Policy Beat encountered a “live chat” on the issue with David Doniger, policy director of the Climate Center at the Natural Resources Defense Council (NRDC).  As Doniger waxed eloquently about the dangers posed by global warming “pollution”—it “leads to killer heat waves, stronger hurricanes, higher smog levels, and many other direct and indirect threats to human health”—a participant queried him about the “absurd” statement from Sen. Inhofe that “EPA’s regulatory reach will find its way into schools, hospitals, and assisted living facilities, and just about any activity that meets certain minimum thresholds in the Clean Air Act.”   After confidently dismissing this claim as nothing more than “scare tactics,” Mr. Doniger directed the questioner to his weblog from last year, where he said the following: “What about the president’s claim that he’d have to regulate everything ‘from schools and stores to hospitals and apartment buildings’?  Would you be surprised to learn that no one is asking EPA to do this?  In fact, EPA has already figured out ways it could avoid sweeping in small sources of CO2.”

FACT: Setting aside how Mr. Doniger defines ‘no one’, EPW Policy Beat has always considered the Conservation Law Foundation and the Center for Biological Diversity to be “someone.”  In their comments on EPA’s Advanced Notice of Proposed Rulemaking (ANPR) on greenhouse gas regulation under the Clean Air Act, both groups did ask EPA to regulate such sources; moreover, both groups asserted that EPA is required by law to apply the PSD program to sources emitting above 100 or 250 tons per year.  No exceptions.  Scary indeed.

For Mr. Doniger’s benefit, here’s the Center for Biological Diversity: “While it is uncontroversial that EPA should prioritize the largest pollution sources first, one of the reasons that the NSR program will be such an effective tool for reducing GHG emissions is that it applies to a wide array of sources that will emit in excess of the applicable statutory thresholds of 250 or 100 tons per year.”  What about claims from Doniger and others that EPA can simply circumvent the statutory thresholds for, say, schools and hospitals?  “As a threshold matter, the asserted belief of EPA officials that the statutory requirements are burdensome or not “efficient” as they should be simply does not excuse the agency from following the law. The EPA has no authority to weaken the requirements of the statute simply because its political appointees don’t like the law’s requirements” [emphasis added]. Link to Document  But can’t EPA just invent new thresholds?  “Several of the suggestions that the EPA has advanced are outside the scope of its authority. The EPA has no authority to set higher GHG major source cutoffs and significance levels.”  But doesn’t the enormous burden of permitting thousands of small sources give EPA administrative flexibility?  “Such administrative issues are not legally cognizable reasons to ignore the statute’s requirements, and should not be allowed to stand in the way of achieving the emissions reductions necessary to avert climate catastrophe. The reality of the climate crisis is that we must ultimately reduce emissions from all pollution sources” [emphasis added]. Link to Document     

Finally, again for Mr. Doniger’s benefit, we offer the following from the Conservation Law Foundation: “Second, we disagree that the PSD program’s 100 tons of emissions per year permitting threshold is problematic.  As noted above, to avert the worst impacts threatened by climate change, our response must be massive and must reach all sectors of all economies across the globe. Thus, the fact that the PSD threshold could bring in a large number of new permittees that would not otherwise be subject to preconstruction permit requirements under the Act is appropriate” [emphasis added]. Link to Document