It's Hard To Hide An Oil Refinery Behind a Donut Shop
Posted September 30, 2009
Today the Environmental Protection Agency announced plans to curb carbon pollution from big power plants and other big polluters under the Clean Air Act, while at the same time assuring the millions of mom and pop businesses across the country that they have nothing to worry about.
"By using the power and authority of the Clean Air Act," said EPA administrator Lisa Jackson, speaking at the Governors Climate Summit in Los Angeles, "we can begin reducing emissions from the nation's largest greenhouse gas emitting facilities without placing an undue burden on the businesses that make up the vast majority of our economy." She added: "The corner coffee shop is not a meaningful place to look for carbon reductions."
What's going on here? Well, two years ago, the Supreme Court issued a landmark ruling that EPA has the authority and responsibility to use the existing Clean Air Act to cut dangerous global warming pollution. And under President Obama, EPA is starting act. Under the clean car peace treaty unveiled in the Rose Garden last March, Administrator Jackson has proposed nationwide global warming pollution standards for new cars and trucks, modeled on California's path-breaking standards. And EPA is working on carbon limits for big power plants, oil refineries, cement plants, and other big factories responsible for most of our heat-trapping pollution.
In a fairly desperate reaction, some of America's biggest polluters - led by the U.S. Chamber of Commerce, the National Petroleum Refiners Association (NPRA), and others - are trying to scare America's small businesses owners into thinking it's them that the EPA is after.
If they force me to curb my pollution, the big boys say, they'll come after schools, homes, and hot dog stands. No one is safe, they shout. Be afraid. Be very afraid.
But it's hard to hide an oil refinery behind a donut shop.
So what is EPA really doing?
Well, when EPA issues its final clean car standards next March, certain other things happen automatically under the Clean Air Act. The most important is that when companies build or expand big pollution sources -- power plants, oil refineries, or cement kilns, for example -- they will have to install the "best available control technology" (BACT) for carbon dioxide and the other global warming pollutants. This is nothing fancy. It's what they've done for years for other dangerous pollutants like sulfur dioxide.
EPA is proposing to set "thresholds" - carbon pollution levels that separate big sources that will have to meet these requirements from small ones that will not.
This is a common sense concept that NRDC and other environmental groups proposed a more than a year ago.
But along come lawyers and spokesmen for the big boys arguing that EPA can't do that. If you regulate any of us, you have to regulate all of us, down to the donut shop.
It's hostage taking. We're gonna take everyone down with us. Listen to Charles Drevna, of the National Petroleum Refiners Association:
"This proposal incorrectly assumes that one industry's greenhouse gas emissions are worse than another's," Drevna said. "Greenhouse gas emissions are global in nature, and are not isolated to a few select industries. The Clean Air Act stipulates unequivocally that the threshold to permit major sources is 250 tons for criteria pollutants. EPA lacks the legal authority to categorically exempt sources that exceed the Clean Air Act's major source threshold from permitting requirements, and this creates a troubling precedent for any agency actions in the future."
EPA argues that it can set a different threshold - it has proposed 25,000 tons of carbon dioxide - to recognize that each power plant or other big source emits roughly 100 times more carbon dioxide than conventional pollutants like sulfur dioxide. Accordingly, EPA says the proposed 25,000 ton threshold respects Congress's decisions about which big plants should have to install the best available control technology, and which small ones should not. Congress, EPA contends, never wanted to treat mom and pop shops the same as the big boys. In short, EPA argues that its new thresholds avoid absurd results and administrative nightmares.
The big boys' lawyers are getting ready to argue that EPA can't do this, that only Congress can change these threshold numbers. They claim the courts will strike EPA's rule down. But who'll bring that suit? It won't be NRDC or any of the other environmental groups active in this fight. And it's not clear that the big boys have "standing" - the kind of legal injury needed to take to take this complaint to court. And the courts themselves have recognized the doctrines of avoiding absurd results and administrative nightmares.
So I'm betting on EPA. And then, with small businesses safely shielded, the Chamber and NPRA will have no one to hide behind.
What's more likely is that Congress will clear this up well before the courts weigh in, by writing the EPA's thresholds into new comprehensive climate and energy legislation. That's an idea with support from both environmental organizations and responsible companies.
Maybe I'm a dreamer, but it's never too late for the Chamber and its allies to stop the scare-mongering and join the effort to pass this new legislation.
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