TheU.S. EPA is set to revise certain greenhouse gas permitting programs asdirected by a federal appeals court. The changes were required in response to a2014 U.S. Supreme Court decisionthat preserved the EPA's ability to require permits from large-scale greenhousegas polluters, but also reprimanded the agency for overreaching.
TheEPA has submitted the revisions to the prevention of significant deterioration,or PSD, and Title V permitting programs to the Office of Management and Budget,which will have 90 days to review the revisions before they are published inthe Federal Register. The revisions will establish a greenhouse gas emissionslimit but not require sources to install best available control technology, orBACT, to control those emissions, according to the OMB's Office of Informationand Regulatory Affairs.
TheEPA expanded its PSD and Title V permitting programs to include greenhouse gasemissions after the agency determined in 2009 that those pollutants endangerboth public health and welfare. The EPA first moved to apply the permittingrequirements to motor vehicles in 2010, and in January 2011 applied them tocertain power plants and other stationary sources. But the EPA had to revisethe emissions limits — which were 100 tons and 250 tons per year depending onthe pollutant — because greenhouse gases are different from the otherpollutants that had previously been regulated under the two permittingprograms. It therefore released what became known as the tailoring rule tochange the limits and phase in greater reductions over time, which was laterchallenged all the way to the U.S. Supreme Court.
Thehigh court in June 2014 ultimately determined in Utility Air Regulatory Group vs. EPA that the agency could requiregreenhouse gas controls under the PSD and Title V programs for polluters whosurpass key thresholds for other pollutants. But the opinion said the agencymay not require permits from thousands of emitters who would need to applysolely because of their greenhouse gas emissions, a group representing 3% ofAmerican stationary source emissions.
Inresponse, the U.S. Court of Appeals for the District of Columbia Circuitdecided not to revisit a case of its own that targeted the same permittingprograms. The D.C. Circuit in Coalitionfor Responsible Regulation, Inc., et al., v. EPA (09-1322, et al.) insteadvacated several portions of the EPA's permitting program to reflect the UARG decision. It also directed the EPAto take steps to rescind or revise the PSD permit requirements that requiredstationary sources to acquire permits when greenhouse gases are the onlypollutant emitted; solely on the basis that the source emits, or has thepotential to emit, above the applicable threshold; or when there is asignificant emissions increase from a modification to the source.
Thecourt also vacated portions of the Title V permitting program that required astationary source to obtain a permit solely because the source emits, or hasthe potential to emit, greenhouse gases above the threshold. Finally, the courtthrew out requirements that the EPA phase-in a lower greenhouse gas thresholdfor both permits.