The question is whether the EPA or any Executive branch agency has the power to ignore the actual wording of the Clean Air Act to "tailor" the rules. Tomorrow and Wednesday a three-judge panel of the D.C. Circuit Court of Appeals will hear two full days of oral arguments on this and three other issues.
First up Reuters:
E.P.A. proposes streamlining CO2 permitting for heavy industry
U.S. environmental regulators have proposed a new rule that limits requirements for factories to hold permits for greenhouse gas carbon emissions to the largest sources such as big coal-fired power plants and big manufacturers.
The Environmental Protection Agency's chief Lisa Jackson signed on Friday the third step of a so-called "tailoring rule" on carbon emissions which proposes to keep greenhouse gas permitting at current levels of at least 100,000 tons per year of carbon dioxide equivalent.
Plants with that level of pollution that make changes that would lead to an increase in the pollution of 75,000 tons per year would have to get another round of permits.
Under the new rule, the EPA will not require industrial plants that emit 50,000 tons per year of carbon dioxide, or a bit more, to hold permits for releasing carbon dioxide, according to documents on the agency's web site.
The EPA's program on fighting emissions blamed for warming the planet will be challenged in a federal court this week, with opening arguments being heard on Tuesday and Wednesday.
An environmentalist said the proposals limiting permitting to the largest sources made sense.
"I don't think you'd get much gain from the headache of going after the smaller sources," said Frank O'Donnell, president of Clean Air Watch. He said state and local permitting agencies that have faced budget cuts could have trouble handling work load if permits for the smaller polluters were required....
Here's Inside Climate News on the Appeals Court hearings:
Appeals Court to Hear Arguments over EPA Carbon Rules This Week
EPA’s endangerment finding and tailpipe, tailoring and timing rules to face legal challenges in a single case consolidated from dozens of lawsuits.
WASHINGTON—Opponents intent on blocking EPA's "endangerment finding" and the agency's other efforts to regulate emissions of heat-trapping gases via the Clean Air Act will have their two days in court this week.
A three-judge panel with the U.S. Court of Appeals is slated to hear oral arguments on the legal challenges Tuesday and Wednesday in the nation's capital.
In addition to the endangerment finding, the court will be reviewing a trio of other regulations—abbreviated as the "tailpipe," "tailoring" and "timing" rules. Combined, they are the bedrock of the Environmental Protection Agency's attempts to regulate emissions of carbon dioxide and other greenhouse gases from vehicles and big industrial sources.
All four rules represent the agency's response to Massachusetts v. EPA. In that landmark 2007 decision, the Supreme Court gave EPA authority over carbon pollution. The high court justices also made it clear that agency officials could not shirk that authority unless they could provide a scientific basis for refusing to act.
The appeals court's rulings, expected to be issued this summer, are significant because they have the potential to halt, delay, modify or increase the scope of EPA's regulation of carbon under the Clean Air Act.
To streamline the two-day exercise, dozens of lawsuits by the petitioners have been combined under the name Coalition for Responsible Regulation v. EPA....MORE
The Center for Progressive Reform blog lays out some of the issues but focuses on the standing issue:
EPA's Standing Argument: A Sleeping Giant in the Tailoring Rule Litigation?
On Feb. 28 and 29, the D.C. Circuit is scheduled to hear arguments on a suite of industry-led challenges to EPA-issued greenhouse gas rules. While attention has focused on industry’s challenge to EPA’s finding that greenhouse gases (GHGs) endanger the environment, industry’s challenge to the greenhouse gas permitting “tailoring” rule – a rule limiting the CAA’s application to only the largest GHG sources – is just as important, and just as interesting a battle. At issue is constitutional law’s most hard-fought doctrine in environmental litigation: standing to sue.
In its September 2011 brief, EPA contends that the Tailoring Rule is designed to alleviate the burden that the CAA would otherwise impose on a wide variety of stationary GHG sources. Because it is alleviating, not imposing, a burden, the Tailoring Rule does not create the “injury” that industry must demonstrate to have standing to sue. If the plaintiffs lack standing, then the court must dismiss industry’s challenge. The injection of standing into the case makes the tailoring litigation all the more interesting because, as a result, the court may have a strong basis for dismissing what is otherwise considered a robust legal challenge to the Tailoring Rule.
As an industry group argues in the Tailoring Rule case, Coalition for Responsible Regulation v. EPA, the agency’s rule raising the emission thresholds for Prevention of Significant Deterioration and Title V permits flatly contradicts the express language of the Clean Air Act. The Clean Air sets these thresholds at 250 and 100 tons per year, multiples lower than the Tailoring Rule’s regulatory thresholds of at least 75,000 tons per year. EPA argues that upping the thresholds was “necessary” to avoid “absurd results” that would otherwise flow from the administrative burdens created by low statutory thresholds, thresholds that could subject numerous small-scale sources, like restaurants and other small businesses, to CAA permitting requirements for the first time. (EPA has said that simply implementing GHG controls without the Tailoring Rule would theoretically require 230,000 new employees to handle the permitting). This is a good common sense argument, but many courts are reluctant to ignore a statute’s literal language. The courts may never reach the merits, however, if EPA succeeds in having the suit dismissed on standing grounds....MORE
