In a major shift, Sen. Barbara Boxer (D-CA) has changed the Clean Energy Jobs Act to significantly restrict the use of existing Clean Air Act provisions to regulate greenhouse gases. Unlike the climate bill passed by the House in June, the initial version of the Clean Energy Jobs and American Power Act, released by lead sponsor Sen. John Kerry (D-MA) and Boxer last month, did not strip the Environmental Protection Agency’s existing authority. The new language excludes global warming pollution from several sections of the Clean Air Act, limiting its regulation to operating permits for stationary sources emitting over “25,000 tons per year of any greenhouse gas”:
Notwithstanding any provision of this title or title III, no stationary source shall be required to apply for, or operate pursuant to, a permit under this title solely because the stationary source, including an agricultural source, emits less than 25,000 tons per year of any greenhouse gas or combination of greenhouse gases that are regulated solely because of the effect of those gases on climate change.
The 25,000 ton standard reflects the EPA’s plan for starting global warming regulation under a “tailoring rule” limited to the few thousand stationary sources of more than that amount of carbon dioxide a year — in large part coal-fired power plants. However, Boxer’s text is poorly written, as many greenhouse gases are thousands of times more powerful global warming pollutants than carbon dioxide.
The new text — like that of the House bill — completely forbids the regulation of greenhouse gases under the criteria pollutant, hazardous air pollutant, and international air pollution sections of the Clean Air Act.
Although several progressive and environmental organizations have made the preservation of existing Clean Air Act authority in the Clean Energy Jobs and American Power Act a key demand, Democratic members of the Committee on Environment and Public Works — which is now beginning to mark up the legislation — are split on this issue. Committee members Sen. Kirsten Gillibrand (D-NY) and Sheldon Whitehouse (D-RI) are signatories, with Chris Dodd (D-CT), of a dear colleague letter in favor of allowing greenhouse gas regulation as a pollutant circulated by Sen. Bob Menendez (D-NJ). However, Sen. Arlen Specter (D-PA) had questioned the provision, and influential member Max Baucus (D-MT), the Finance Committee chair, strongly opposes EPA regulation.
Other changes to the original version of the legislation reflect industry-friendly demands from Democrats on the committee. They include: increasing free allowances to major oil refineries, putting the Secretary of Agriculture in charge of the agriculture offset program, and making owners of abandoned mountaintop removal sites (“private or public abandoned mine land”) eligible for “Greenhouse Gas Reduction Incentives.”
The chairman’s mark also adds some provisions which strengthen the bill: Rep. Doris Matsui’s (D-CA) tree-planting program language, incentives for rapid renewable energy deployment, and a program to reduce black carbon emissions from diesel.
Text in chairman’s mark of Clean Energy Jobs and American Power Act restricting Clean Air Act regulation of greenhouse gases:
(g) AMENDMENTS CLARIFYING REGULATION OF GREENHOUSE GASES UNDER CLEAN AIR ACT.—
(1) AIR QUALITY CRITERIA AND CONTROL TECHNIQUES.—Section 108(a) of the Clean Air Act
(42 U.S.C. 7408(a)) is amended by adding at the end the following:
(3) PROHIBITION ON LISTING OF GREENHOUSE GASES.—On and after the date of enactment of this paragraph, the Administrator shall not include on the list of pollutants under this subsection any greenhouse gas on the basis of any effect the greenhouse gas may have on climate change.’’.
(2) HAZARDOUS AIR POLLUTANTS.—Section 112 of the Clean Air Act (42 U.S.C. 7412) is amended by adding at the end the following:
(20) GREENHOUSE GAS LIMITATION.—No greenhouse gas may be added to the list of hazardous air pollutants under this section unless the greenhouse gas meets the criteria described in sub
Section (b) independent of the effects of the greenhouse gas on climate change.’’.
(3) INTERNATIONAL AIR POLLUTION.—Section 115(c) of the Clean Air Act (42 U.S.C. 7415(c)) is amended—
(A) by striking (c) This section’’ and inserting the following:
(A) FOREIGN COUNTRIES.—This section’’; and
(B) by adding at the end the following:
(B) GREENHOUSE GASES.—This section does not apply to any greenhouse gas with respect to the effects of the greenhouse gas on climate change.’’.
(4) DEFINITION OF MAJOR EMITTING FACILITY.—Section 169(1) of the Clean Air Act (42 U.S.C. 7479(1)) is amended—
(A) in the first sentence, by inserting
(other than any greenhouse gas), and 25,000 tons per year of carbon dioxide equivalent for any greenhouse gas or combination of greenhouse gases’’ after one hundred tons per year or more of any air pollutant,’’; and
(B) in the second sentence, by inserting
(other than any greenhouse gas), and 25,000 tons per year of carbon dioxide equivalent for any greenhouse gas or combination of greenhouse gases’’ after two hundred fifty tons per year or more of any air pollutant’’.
(5) PERMITS.—Title V of the Clean Air Act (42 U.S.C. 7661 et seq.) is amended by adding at the end the following:
Sec. 508. EMISSIONS OF GREENHOUSE GASES. Notwithstanding any provision of this title or title III, no stationary source shall be required to apply for, or operate pursuant to, a permit under this title solely because the stationary source, including an agricultural source, emits less than 25,000 tons per year of any greenhouse gas or combination of greenhouse gases that are regulated solely because of the effect of those gases on climate change.’’.
E&E News reports that that “the new language would effectively codify EPA’s proposed ‘tailoring rule’ for greenhouse gas emissions,” and that Sierra Club Clean Air Act advocate David Bookbinder is not concerned by this language:
David Bookbinder, the Sierra Club’s chief climate counsel, applauded the new language. He said it removed the problematic possibility that EPA could be forced to regulate greenhouse gases as air toxics or criteria pollutants while allowing the agency to regulate large stationary sources and mobile sources.
“There’s nothing wrong with requiring emission controls that are technologically and economically feasible, even under a cap-and-trade system,” he said.
,In contrast, E&E News reports, Center for Biological Diversity Clean Air Act expert Bill Snape believes Boxer’s language forbidding greenhouse gases from being listed as a criteria pollutant (requiring National Ambient Air Quality Standards) represents a serious rollback:
“NAAQS is the best tool of which I am aware to get pollution levels to where the science is telling us,” said Bill Snape, senior counsel of the Center for Biological Diversity. He said that the authority to set ambient pollution levels with NAAQS could be a useful way to cap atmospheric carbon dioxide at safe levels. Snape worries the concession is a signal that similar compromises are coming down the pipe. “We haven’t even started markup yet and we’re giving stuff away,” he said.