Capitol Hill

The U.S. Environmental Protection Agency's (EPA's) Advance Notice of Proposed Rulemaking (ANPR): Regulating Greenhouse Gas Emissions Under the Clean Air Act (CAA) was published July 30, 2008, and has generated great alarm in the business community. The ANPR is in response to the U.S. Supreme Court's ruling in Massachusetts v. EPA. The ruling stated EPA must determine whether carbon dioxide or other greenhouse gas emissions from motor vehicles endanger public health or welfare.

However, the ANPR transcends motor vehicles to take into account numerous petitions related to the potential regulation of greenhouse gas emissions under the CAA. As EPA acknowledges in the ANPR, a finding of "endangerment" for motor vehicles would trigger not only vehicle controls but also invasive carbon dioxide controls on buildings and other stationary emissions sources. Four regulatory programs would be triggered: National Ambient Air Quality Standards; New Source Performance Standards; Prevention of Significant Deterioration; and Title V (operating permits).

Halting construction

According to the U.S. Chamber of Commerce, National Ambient Air Quality Standards for carbon dioxide would result in a permanent scaling down of societal quality of life as every state would have to grapple with nonattainment status and the resulting penalties, including loss of federal highway funding; punitive offsets to new construction on a 1-to-1 basis or more; and imposition of the strictest technology standards and pollution controls under the CAA. New Source Performance Standards would require the imposition of "best available technology" for new and existing stationary sources in a potentially limitless number of source categories.

Furthermore, according to a study by the chamber, regulating carbon dioxide under the CAA would subject 1.2 million buildings in the U.S. to Prevention of Significant Deterioration permitting as a condition for new construction or modifications.

If only 40,000 of these 1.2 million buildings need new construction or modifications, Prevention of Significant Deterioration compliance alone would cost more than $5 billion and require 17,320 full-time employees. The owners of 1.2 million buildings would have to obtain Title V operating permits as a condition to their operations, which requires at least a $25-per-ton compliance fee and grants a 60-day window for any U.S. citizen to challenge the permit by way of a citizen lawsuit.

Economic havoc

An endangerment finding by EPA could wreak havoc on the U.S. economy as it's struggling to climb out of a credit crisis. It is estimated that at least 1 million midsize to large buildings already emit enough carbon dioxide each year to become EPA-regulated stationary sources; nearly 200,000 manufacturing operations would become regulated sources; and 20,000 large farms emit enough carbon dioxide per year to become regulated stationary emissions sources.

The compliance costs for the four CAA programs triggered by an endangerment finding would be financially and administratively unreasonable for millions of newly regulated entities. Also, Congress would have to vastly increase amounts appropriated to EPA and perhaps have to appropriate even greater amounts for state and local air quality grants just to administer the permit programs for carbon dioxide.

Avoiding economic burden

It is imperative that EPA decline to make an endangerment finding under the ANPR. It can make a reasonable statement as to why it cannot make an endangerment finding because such a finding would impose tremendous economic burdens on U.S. citizens, economic operations and government.

EPA can call on Congress to pass legislation preventing greenhouse gas emissions from being regulated by the CAA and address tailpipe emissions through the Energy Independence and Security Act of 2007 (passed after the Massachusetts ruling) and the Energy Policy Act of 2005.

Craig S. Brightup is chief executive officer of The Brightup Group LLC, Washington, D.C.