Alaska joins suit, Ohio governor cites concern over EPA GHG effort

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Mar. 22 – More states registered opposition to the US Environmental Protection Agency’s regulating greenhouse gases under the Clean Air Act as Alaska formally joined a lawsuit to stop the process, and Ohio’s governor expressed his concerns to EPA Administrator Lisa P. Jackson.

Alaska state officials filed a motion in the US Appeals Court for the DC Circuit on Mar. 17 to intervene in a lawsuit over EPA’s Dec. 7 finding that six GHGs contribute to global climate change and endanger human health and the environment.

At least 15 states have filed similar petitions seeking to stop the EPA from issuing rules controlling GHG emissions.

EPA’s endangerment finding was prompted by a 2007 US Supreme Court decision in a legal action brought by Massachusetts which rejected the agency’s reasons for denying a petition to regulate GHG emissions from motor vehicles. The US Chamber of Commerce, oil and gas associations, and other industry associations argue that attempting to regulate GHGs under the CAA poses unacceptable economic risks.

“Alaska is challenging a decision that, by EPA’s own admission, will vastly expand the EPA’s regulation of all sectors of the state’s economy,” said Gov. Sean Parnell (R). “We remain concerned that EPA is extending its authority too aggressively and in a manner that harms the state’s interests. We will continue to fight this type of federal overreach.”

Alaska has been a party to litigation over EPA’s authority to regulate greenhouse gas emissions under the CAA since 2003, Attorney General Dan Sullivan said. “Our filing continues Alaska’s involvement in this important case,” he noted. “With its endangerment finding, EPA has clearly signaled that its next step is to regulate emissions from ‘stationary sources’ – a regulatory burden that would severely hamper economic growth and resource development throughout the state.”

Focus of challenge
Sullivan said Alaska is not challenging the science on climate change underlying EPA’s decision. Rather, it is challenging the federal agency’s position that Congress intended EPA and states to regulate GHGs through the CAA’s permitting requirements, along with the process by which EPA came to this decision, he said.

Other state officials said that regulations triggered by EPA’s decision would increase the number of emissions permits that the CAA forces EPA and Alaska to administer from several thousand to more than a million.

“The [CAA] was not designed with regulating greenhouse gases in mind and is not well-suited for that purpose,” said Alaska Environmental Conservation Commissioner Larry Hartig, who chairs the governor’s executive sub-cabinet on climate change. “Climate change presents a complex challenge involving critical social and economic issues in addition to important long-term environmental concerns. A congressional solution with strong input from states and communities is the best way to address the climate change challenge.”

In his Mar. 15 letter to Jackson, Ohio Gov. Ted Strickland (D) said that while he does not dispute the need to address climate change, “I strongly believe that comprehensive federal legislation which accurately and fairly takes into account, and properly addresses, the varying economic impacts on the diverse states is the best way to tackle the issue.”

Passage of such legislation would occur only after thorough analysis and debate allowing all perspectives, including Ohio’s, to be taken into consideration, he continued. “Further, given the magnitude of the transformative effect of climate change measures on the nation’s and Ohio’s energy policy, energy infrastructure, and overall economy, in addition to its significant effect on the day-to-day lives of our citizens, the federal legislative process is the only process truly suited to the task,” Strickland said.

Stationary sources permitting
He suggested that if EPA moves ahead with regulating GHGs under the CAA, power generating plants, refineries, manufacturing facilities and other stationary source would immediately be required to obtain permits. As a result, these stationary sources would also be required to use the best available control technology (BACT) even though such technology has yet to be fully determined, he said.

“The director of the Ohio EPA has repeatedly expressed to me his concerns that, at this time, there is no clear idea of what BACT for GHGs should be for large stationary sources, and that it may take years before BACT for such sources can be efficiently and consistently identified and applied to meet the regulatory requirements,” Strickland told Jackson in the letter.

“While I do not disagree with the US EPA’s factual assertion that greenhouse gases do, in fact, cause or contribute to the endangerment of public health and welfare, I feel strongly that a regulatory approach, acted upon without legislative consideration of its effect on states that have a heavy industrial base and coal-generated electric production, will be financial and economically devastating for Ohio,” he continued. “Therefore, I support a delay in implementation of GHG regulatory activity until Congress passes a comprehensive climate bill or until technologies are readily available to meet the BACT mandate of the CAA.”

American Chemistry Council President Cal Dooley said on Mar. 18 that he appreciated Strickland’s weighing in with his concerns. The chemical manufacturing association also is troubled that EPA has not developed guidance on BACT requirements associated with a proposed GHG permit program, he added.

“We believe the result will be regulatory confusion and a virtual construction freeze across Ohio, one of America’s manufacturing and technology leaders, and the nation,” said Dooley. “Ironically, EPA’s action could cause the delay or cancellation of many energy efficiency investments and stimulus-related projects – the very projects that the [Obama] administration wants to expand to aid recovery and reduce [GHG] emissions.”

He said that Congress needs to act immediately since EPA has indicated that it plans to finals the rule for mobile sources (cars and light trucks) by Mar. 31, which would lead to GHG regulation of GHGs at as many as 6 million stationary sources.

Contact Nick Snow at nicks@pennwell.com