If you can't catch it, you can't cut it
Let's get this one thing straight: The U.S. Environmental Protection Agency's plan for regulating greenhouse-gas emissions from stationary sources under the Clean Air Act -- a "tailoring rule," which goes into effect January 2, 2011 -- is nothing radical. States may be suing, a bipartisan swarm of senators may be politicking to stop it, energy lobbyists may be fretting their usual frets about jobs and the economy, but the rule won't shut anyone down.
It can't: For one thing, it only applies to the largest new carbon-emitting facilities or significant modifications of large facilities.
For another, the regulatory arm of the federal government has no more interest in making life difficult for industry than does Senator Jay Rockefeller (D-W. Va.,), who's leading the Congressional charge to delay the rule. Written into EPA's policy guidance is a provision that says hey, if it costs too much, forget it. We won't hold you to it if it's going to break your bank.
Only large new or significantly-upgraded facilities will be regulated under the new Clean Air Act carbon permitting. Photo courtesy Flickr user Señor Codo.
And since there currently exist zero proven control technologies for the most notorious greenhouse gas, which is carbon dioxide, it's unlikely any new facility will be forced to implement pricey, radical, as-yet-unproven capture measures.
So what about all these warnings of impending catastrophe? Why is Nevada Senator Harry Reid suddenly indicating he's open to "working with" Rockefeller on stripping EPA of its authority to regulated greenhouse gases? And what's this about the EPA rule causing a "moratorium on all new construction in the energy sector and in the manufacturing sector," as Scott Segal of the law firm Bracewell and Giuliani told Monica Trauzzi of Energy and Environment TV?
There are even states, one of them Western, whose legislators say it can't be done: Wyoming has a law against such regulating greenhouse gases written into its constitution. As Gov. Dave Freudenthal has been saying for a year, "there is a high likelihood that any permitting strategy imposed on the states at this juncture is premature."
"It's all garbage," says Bill Becker of the National Association of Clean Air Agencies. "What you're hearing is garbage."
"The opponents of this program have tried to scare the pants off people," says Becker, whose organization represents pollution control districts across the nation. "They're saying ‘It's going to halt growth. It will mean you can't burn coal.' The states don't have the capacity to regulate this. None of that is true."
The rulemaking was triggered by a landmark 2007 U.S. Supreme Court decision requiring EPA to regulate greenhouse gases if the agency found they endangered public health. Two years later, EPA's scientists found that they did, and went to work crafting rules that would apply to greenhouse gases. The rules are based on "best available control technology," an age-old standard for reducing emissions of pollutants such as the sulfur that makes rain acidic.
The problem, of course, is that carbon dioxide isn't like sulfur dioxide or mercury pollution. You can't scrub it, absorb it or flush it out – the best hope for reducing carbon emissions is capture and sequestration, and no one believes that technology is ready for prime time.
"Every time I see a new study on sequestration it's always 10 or 15 years from now," says Pat Parenteau, a professor at Vermont Law School. "And I've been reading that same forecast for 10 or 15 years. So unless they're saying ‘don't burn coal,' what the EPA is doing won't amount to more than, as we say in Vermont, ‘a pee-hole in the snow.'"
But the EPA can't say "don't burn coal," Becker says. Instead, the control technologies will be hammered out case-by-case basis, where states work closely with regulated facilities to come to a permitting agreement. These permits "will take into consideration cost, energy and the feasibility of applying those controls," he adds. Where states can't regulate because of their own state laws, the federal government will -- and in Wyoming's case has already agreed to -- step in.
And if the cost of implementing CO2 control technology is prohibitive, the state or local permitting agency can let the polluter off the hook, says Becker.
Don't get the idea, though, that the EPA rule is meaningless: Pee-hole or no, it could be the kind of thing that drives new technology – there may be ways of reducing carbon emissions we haven't thought of yet. It will also help regulators get a bead on what's out there and how bad it is.
"For the first time in history," Becker says, "EPA will require that facilities to go through the process of examining every piece of their operations and take actions that will reduce greenhouse gases by improving energy efficiency. And arguably, they should have been doing that anyway."
Judith Lewis Mernit is a High Country News contributing editor. She writes from California.