Federal Agency Actions Following the
Supreme Court’s Climate Change Decision
in Massachusetts v. EPA: A Chronology
Robert Meltz
Legislative Attorney
May 1, 2012
Congressional Research Service
7-5700
www.crs.gov
R41103
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Federal Agency Actions Following the Supreme Court's Climate Change Decision
Summary
On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions.
In Massachusetts v. EPA, the Court held 5-4 that greenhouse gases (GHGs), widely viewed as
contributing to climate change, constitute “air pollutants” as that phrase is used in the Clean Air
Act (CAA). As a result, said the Court, the U.S. Environmental Protection Agency (EPA) had
improperly denied a petition seeking CAA regulation of GHG emissions from new motor vehicles
by saying the agency lacked authority over such emissions.
This report offers a chronology of major federal agency actions, mainly by EPA, that involve
GHGs or climate change and that occurred in the wake of Massachusetts v. EPA. Most of the
listed actions trace directly or indirectly back to the decision. Examples include EPA’s
“endangerment finding” for GHG emissions from new motor vehicles; the agency’s standards for
GHG emissions from new motor vehicles; its interpretation of “pollutants subject to regulation,”
the CAA trigger for requiring best available control technology (BACT) for such pollutants in
“prevention of significant deterioration” areas; its guidance for determining BACT for GHG
emissions; the “tailoring rule” (limiting the stationary sources that initially will have to install
BACT and obtain CAA Title V permits based on their GHG emissions); and settlements of
litigation seeking to compel new source performance standards (NSPSs) for GHG emissions from
electric power plants and petroleum refineries. A few agency actions were included solely
because of their relevance to climate change and their post-Massachusetts occurrence—for
example, EPA’s responses to California’s request for a waiver of CAA preemption allowing that
state to set its own limits for GHG emissions from new motor vehicles, and EPA’s monitoring rule
for GHG emissions.
More analytical treatment of the government actions in this report may be found in CRS Report
RL32764, Climate Change Litigation: A Survey, by Robert Meltz; CRS Report R40984, Legal
Consequences of EPA’s Endangerment Finding for New Motor Vehicle Greenhouse Gas
Emissions, by Robert Meltz; CRS Report RS22665, The Supreme Court’s Climate Change
Decision: Massachusetts v. EPA, by Robert Meltz; CRS Report R40585, Climate Change:
Potential Regulation of Stationary Greenhouse Gas Sources Under the Clean Air Act, by Larry
Parker and James E. McCarthy; CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation
of Greenhouse Gases from Mobile Sources, by James E. McCarthy and Brent D. Yacobucci; and
CRS Report R40166, Automobile and Light Truck Fuel Economy: The CAFE Standards, by Brent
D. Yacobucci.
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Federal Agency Actions Following the Supreme Court's Climate Change Decision
Contents
Introduction...................................................................................................................................... 1
2008 ................................................................................................................................................. 2
2009 ................................................................................................................................................. 3
2010 ................................................................................................................................................. 4
2011 ................................................................................................................................................. 8
2012 ................................................................................................................................................. 9
Appendixes
Appendix. Table of Acronyms ....................................................................................................... 10
Contacts
Author Contact Information........................................................................................................... 10
Congressional Research Service
Federal Agency Actions Following the Supreme Court's Climate Change Decision
Introduction
On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions
ever. The case, Massachusetts v. EPA,1 arose when the U.S. Environmental Protection Agency
(EPA) denied a petition asking it to take two actions—(a) find under the Clean Air Act (CAA)
that greenhouse gases (GHGs) emitted from new motor vehicles “cause, or contribute to, air
pollution which may reasonably be anticipated to endanger public health or welfare,”2 through
their climate change effects, then (b) issue standards for those GHG emissions. EPA’s petition
denial was based in part on its claim that it lacked authority to regulate GHGs. To the contrary,
said the Supreme Court by 5-4, GHGs constitute “air pollutants” under the CAA, hence EPA does
indeed have the authority to regulate GHG emissions. The Court gave EPA three options:
(a) determine that GHG emissions from new motor vehicles “cause, or contribute to, air pollution
which may reasonably be anticipated to endanger public health or welfare”; (b) determine that
such GHG emissions do not do so; or (c) explain why the agency is unable to make a
determination under either (a) or (b).
EPA chose option (a)—that is, to make a positive “endangerment finding” for GHG emissions
from new motor vehicles. That finding was made in December 2009, whereupon the CAA
required EPA to promulgate standards to address the endangerment.3 That action the agency also
has taken, in May 2010. These standards in turn triggered the CAA requirement that major new
stationary sources and major modifications of existing stationary sources, when proposed for
Prevention of Significant Deterioration (PSD) areas, must install “best available control
technology” (BACT) to control GHG emissions.4 And that requirement—to install BACT—
triggered CAA Title V permitting requirements that for many air pollution sources would not
otherwise be triggered.5
This report is a chronology of the major climate-change-related actions taken by federal agencies,
principally EPA, in the wake of Massachusetts v. EPA. Most of the listed actions trace directly or
indirectly back to the decision; a few were included solely because of their relevance to climate
change and their occurrence post-Massachusetts. More analytical treatment of the agency actions
in this report may be found in other CRS reports.6
The EPA actions listed in this report may be short-lived. Congressional efforts to delay or bar EPA
regulation of GHGs while Congress is deliberating a post-CAA climate change regime have seen
their prospects improve as a result of the 2010 election. For the time being, however, EPA’s
efforts to control GHG emissions under its CAA authority have been termed “the only game in
1 549 U.S. 497 (2007).
2 CAA §202(a); 42 U.S.C. §7521(a).
3 Id.
4 CAA §165(a)(4); 42 U.S.C. §7475(a)(4).
5 CAA §§501-507; 42 U.S.C. §§7661-7661f.
6 See CRS Report RL32764, Climate Change Litigation: A Survey, by Robert Meltz; CRS Report R40984, Legal
Consequences of EPA’s Endangerment Finding for New Motor Vehicle Greenhouse Gas Emissions, by Robert Meltz;
CRS Report RS22665, The Supreme Court’s Climate Change Decision: Massachusetts v. EPA, by Robert Meltz; CRS
Report R40585, Climate Change: Potential Regulation of Stationary Greenhouse Gas Sources Under the Clean Air
Act, by Larry Parker and James E. McCarthy; CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation of
Greenhouse Gases from Mobile Sources, by James E. McCarthy and Brent D. Yacobucci; and CRS Report R40166,
Automobile and Light Truck Fuel Economy: The CAFE Standards, by Brent D. Yacobucci.
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town.”7 The potential impacts of EPA’s efforts have been lost on no one: no fewer than 90
petitions for review of EPA’s actions in this report have been filed in the U.S. Court of Appeals
for the D.C. Circuit, all of them now pending.8
• A table of acronyms is provided in the Appendix.
• Dates used are those of Federal Register publication wherever a Federal
Register citation is given. In most cases, however, the agency action was
signed and publicly announced weeks earlier.
• Once an agency promulgates a final rule, the entry for the proposed rule
has been deleted.
2008
March 6: EPA denies California’s request for waiver of CAA preemption. 73 Fed. Reg.
12,156. By way of background, the CAA preempts state controls on new motor vehicle
emissions,9 but offers California, and California alone, the opportunity to request a waiver of
CAA preemption.10 EPA must grant the preemption waiver if certain conditions are met.11 The
importance of this “California waiver” is magnified by the fact that once EPA grants the waiver,
states that adopt motor vehicle emission standards identical to California’s also partake of the
preemption waiver for the same vehicles.12 In the present case, California sought a waiver of
CAA preemption for its GHG emissions limits for 2009 and later model year motor vehicles. EPA
denied the waiver on finding that the state did not need those emission limits to meet “compelling
and extraordinary conditions,” as required by the CAA.13 (See “July 8, 2009” below for EPA’s
reversal of this denial.)
July 30: EPA issues advance notice of proposed rulemaking. 73 Fed. Reg. 44,354. This
document, titled “Regulating Greenhouse Gas Emissions Under the Clean Air Act,” sets out
EPA’s view of the legal implications were EPA to make a positive endangerment finding for
GHGs from new motor vehicles—as discussed in the “Introduction,” option (a) offered by the
Supreme Court. It is purely an informational document, prepared after the George W. Bush
7 Robin Bravender, With Hill hopes dashed, advocates circle wagons at EPA, Greenwire (August 25, 2010).
Characterizing EPA’s efforts as “the only game in town” for dealing with climate change is not strictly accurate, unless
“town” is taken literally to mean Washington, DC. Outside Washington, DC, entities unsatisfied with the pace of
congressional and EPA action vis-à-vis climate change have looked to international forums, treaty negotiations, state
and regional efforts, and lawsuits seeking to establish GHG emissions as a common law nuisance. Regarding the last
item, see CRS Report R41496, Common-Law Climate Change Litigation After American Electric Power v.
Connecticut, by Robert Meltz.
8 These lawsuits challenge primarily four GHG-related actions by EPA. The four actions, and the dates under which
they are described in this report, are (1) the “endangerment finding” (December 15, 2009); (2) the “tailpipe rule” (May
7, 2010); (3) the “timing rule” (April 2, 2010); and (4) the “tailoring rule” (June 3, 2010). See Gregory E. Wannier,
EPA’s Impending Greenhouse Gas Regulations: Digging Through the Morass of Litigation, available at
http://www.law.columbia.edu/centers/climatechange/publications/workingpapers.
9 CAA §209(a); 42 U.S.C. §7543(a).
10 CAA §209(b); 42 U.S.C. §7543(b).
11 Id.
12 CAA §177; 42 U.S.C. §7507.
13 CAA §209(b)(1)(B); 42 U.S.C. §7543 (b)(1)(B).
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Administration decided in late 2007 not to issue an endangerment finding for new motor vehicle
GHG emissions, but rather to leave that decision to the next Administration.
December 31: EPA Administrator publishes interpretive memorandum (“Johnson
memorandum”). 73 Fed. Reg. 80,300. EPA Administrator Stephen Johnson issued this
memorandum, titled “EPA’s Interpretation of Regulations that Determine Pollutants Covered by
Federal Prevention of Significant Deterioration (PSD) Permit Program.” The memorandum
narrowly interprets the CAA phrase “pollutant subject to regulation under this act”14 to include
only pollutants regulated by actual, not potential future, emission limits under the CAA or its
regulations.
Much hangs on this distinction between actual, and potential future, emission limits. In PSD areas
of the country, the CAA requires only pollutants “subject to regulation under [the CAA]” to be
controlled by potentially expensive BACT—when emitted by new major emitting facilities or
major modifications of existing facilities. Since there were no “actual” GHG regulations under
the CAA when the Johnson memorandum was issued, this meant that for the near term at least,
new major emitting facilities and major modifications of existing facilities proposed for PSD
areas did not have to install BACT for GHG emissions.
2009
February 17: EPA grants petition for reconsideration of Johnson memorandum. (See
“December 31, 2008” above.) EPA did not grant a stay of the memorandum, however,
announcing that it will remain in effect until the agency makes a final decision at the end of the
reconsideration period.
July 8: EPA grants California’s request for waiver of CAA preemption. 74 Fed. Reg. 32744.
This rule reversed EPA’s prior denial of California’s request for a preemption waiver (see “March
6, 2008” above). As noted, its effect is to allow California’s GHG emissions limits for 2009 and
later model year motor vehicles to go into effect, and to allow the identical emission standards for
the same vehicles promulgated by other states to do likewise. Such “other states” now number 13,
plus the District of Columbia.
October 7: EPA implements the grant of reconsideration of the Johnson memorandum. 71
Fed. Reg. 51,535. This document discusses various possible interpretations of “subject to
regulation” and requests public comment. The interpretations discussed include EPA’s “current
and preferred interpretation, which would make PSD applicable to a pollutant on the basis of an
EPA regulation requiring actual control of emissions of a pollutant.” Id. at 51,535. (See “February
17, 2009” above.)
October 30: EPA finalizes mandatory GHG monitoring rule. 74 Fed. Reg. 56,260. The
FY2008 Consolidated Appropriations Act15 requires that EPA develop a rule “to require
mandatory reporting of GHG emissions above appropriate thresholds in all sectors of the
economy”—using EPA’s existing CAA authority. The rule took effect January 1, 2010, with the
first monitoring reports due in 2011. To allow additional time for setting up the reporting system,
14 CAA §165(a)(4); 42 U.S.C. §7475(a)(4).
15 P.L. 110-161, Div. F, tit. II; 121 Stat. 1844, 2128.
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EPA recently extended the reporting deadline for 2010 emissions from March 31, 2011, to
September 30, 2011. 76 Fed. Reg. 14,812 (March 18, 2011). Corrections and clarifications of the
October 30, 2009, monitoring rule appear at 75 Fed. Reg. 66,434 (October 28, 2010). With the
foregoing exceptions, this CRS report does not list EPA’s many amendments and expansions of
this monitoring rule. To stay abreast, the reader is referred to http://www.epa.gov/climatechange/
emissions/ghgrulemaking.html.
December 15: EPA finalizes endangerment finding for GHG emissions from new motor
vehicles. 74 Fed. Reg. 66,496. This action under CAA Section 202(a)16 was option (a) offered to
EPA by the Supreme Court decision, as described on page 1. By this endangerment finding, EPA
actually makes two findings under Section 202(a): first, that six GHGs currently in the
atmosphere are reasonably likely to endanger both public health and welfare, and second, that the
four GHGs emitted by new motor vehicle emissions in the United States contribute to that air
pollution. The endangerment finding has no effect on outside parties in itself; its importance is
that it triggers a duty under Section 202(a) for EPA to promulgate emission standards for the
source category creating the endangerment—in this case, new motor vehicles. (See “May 7,
2010” below for emission standards.)
2010
February 8: Securities and Exchange Commission (SEC) issues guidance regarding
corporate disclosure related to climate change. 75 Fed. Reg. 6290. This interpretive release
provides guidance to public companies as to how existing SEC disclosure requirements apply to
climate change matters.
February 18: Council on Environmental Quality (CEQ) issues draft guidance under
National Environmental Policy Act (NEPA).17 This guidance memorandum from CEQ is titled
“Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas
Emissions.” It addresses the ways in which federal agencies can improve their consideration of
GHG effects in their evaluation of proposals for federal actions under NEPA, including in
environmental impact statements.
April 2: EPA finalizes its reconsideration of Johnson memorandum. 75 Fed. Reg. 17,004.
After taking comments on alternate interpretations of “subject to regulation” (see “December 31,
2008” above), EPA decided to continue with the interpretation published December 31, 2008, in
the Johnson memorandum (more recently referred to as the “timing rule”). In a refinement,
however, EPA stated that “subject to regulation” does not apply to a newly regulated pollutant
(like GHGs) until a regulatory requirement to control emissions of that pollutant not only is
promulgated, but also takes effect. For GHGs, that “regulatory requirement” is the new GHG
emission standards for light-duty motor vehicles, noted immediately below. Since these standards
do not take effect until January 2, 2011, PSD and Title V permitting requirements also will not go
into effect until then—or later under EPA’s tailoring rule finalized June 3, 2010.
May 7: EPA and NHTSA jointly finalize rules setting GHG emission standards and fuel
economy standards for 2012-2016 model year light-duty vehicles. 75 Fed. Reg. 25,323. The
16 42 U.S.C. §7521(a).
17 42 U.S.C. §4321 et seq.
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EPA emission standards (known as the “tailpipe rule”) are pursuant to the agency’s mandatory
CAA duty to promulgate such standards once it finalizes its “endangerment finding” for new
motor vehicles (see “December 15, 2009” above). Regarding NHTSA, the Energy Policy and
Conservation Act, as amended in 2007, requires that agency to prescribe separate fuel economy
standards for passenger and non-passenger automobiles beginning with model year 2011, to
achieve a combined fuel economy average for model year 2020 of at least 35 miles per gallon.18
EPA and NHTSA acted jointly because motor vehicle GHG emissions are directly linked to fuel
consumption. In order to provide a consistent set of standards for auto manufacturers to meet, the
White House brokered an agreement under which EPA would develop GHG emissions standards
under the CAA that would be compatible with fuel economy standards developed by NHTSA.
The EPA and NHTSA standards apply to passenger cars, light-duty trucks, and medium-duty
passenger vehicles, covering model years 2012 through 2016, and purport to represent a
harmonized and consistent national program. (California has announced its commitment to
support the national program: on April 1, 2010, it revised its GHG standards for model years
2012-2016 such that compliance with the federal GHG standards will be deemed compliant with
California’s GHG standards.19) Both EPA and NHTSA standards become more stringent each
year, culminating in an EPA fuel economy equivalent of 35.5 miles per gallon (mpg) and a
NHTSA fuel economy (CAFE) standard of 34.1 mpg, in model year 2016—each standard an
industry fleetwide average. Various factors explain the 35.5/34.1 difference.
June 3: EPA finalizes “tailoring rule.” 75 Fed. Reg. 31,514. This rule is to relieve the
overwhelming permitting burdens that would, in the absence of the rule, fall on PSD and Title V
permitting authorities on January 2, 2011, when EPA’s light-duty vehicle rule for GHGs (see
immediately above) takes effect. The tailoring rule will begin, on January 2, 2011, with GHG
emissions thresholds for PSD new source review and Title V that are much higher than those in
the CAA (EPA hoping to phase in the statute’s low statutory thresholds after many years). Indeed,
the thresholds in the final tailoring rule are higher than those in the proposed rule. For example,
beginning January 2, 2011, PSD requirements will apply to projects that increase net GHG
emissions by at least 75,000 tons per year CO2 equivalent, but only if the project also
significantly increases emissions of at least one non-GHG pollutant. And no source emitting less
than 50,000 tons per year CO2 equivalent will be subject to PSD new source review or Title V
permitting before April 30, 2016.
August 13: EPA denies petitions to reconsider its endangerment finding for GHGs from new
motor vehicles. 75 Fed. Reg. 49,556. After reviewing the 10 petitions, the agency concluded that
its December 15, 2009, endangerment finding (see above) remains well-supported. Several
petitions argued that emails disclosed in late 2009, many from the Climate Research Center at the
University of East Anglia, in England, suggested bias among climate-change scientists,
warranting a new look at the evidence for climate change.
September 2: EPA proposes PSD new source review “SIP call,” and proposes FIP for states
unable to timely submit corrective revisions. 75 Fed. Reg. 53,892, 53,883, respectively. EPA
proposes a rule finding that EPA-approved PSD new source review programs in 13 state
implementation plans (SIPs) are substantially inadequate “because they do not appear to apply
PSD requirements to GHG-emitting sources.” For each of these states, the same proposed rule
18 49 U.S.C. §32902(b)(2)(A).
19 See http://www.arb.ca.gov/regact/2010/ghgpv10/ghgpv10.htm.
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requires it (through a SIP call) to correct its SIP. In a separate proposed rule, EPA sets out a
proposed FIP for any state unable to submit, by EPA’s deadline, its own SIP revision.20 (See
“December 15, 2010” below for final rule on SIP call, and “December 30, 2010” below for FIP
for seven states.)
November 10: EPA issues “PSD and Title V Permitting Guidance for Greenhouse Gases.”
Notice of availability and solicitation of comments at 75 Fed. Reg. 70,254 (November 17, 2010);
full text at http://epa.gov/regulations/guidance/byoffice-oar.html. EPA issued this guidance to
assist permit writers and permit applicants in addressing the Clean Air Act’s PSD and Title V
permitting requirements for GHGs, which begin to apply on January 2, 2011, to certain new
major stationary sources and major modifications of stationary sources (see “June 3, 2010”
above: EPA finalizes “tailoring rule”). Particularly important is the guidance’s discussion of the
process EPA recommends for determining BACT for GHGs from such sources. (As of January 2,
2011, Clean Air Act Section 165(a)(4)21 will require installation of such technology on certain
new major stationary sources and major modifications of stationary sources proposed for PSD
areas of the country.) A modified version of this guidance was issued under the date “March
2011.”
December 13: EPA finalizes PSD new source review “SIP call.” 75 Fed. Reg. 77,698. This
final rule asserts a finding that the EPA-approved SIPs of 13 states are substantially inadequate to
meet CAA requirements because they do not apply PSD requirements in their SIPs to GHG-
emitting sources. Owing to this finding, the rule issues a SIP call for each of the 13 states to
revise its SIP as necessary to correct such inadequacies,22 with deadlines ranging from December
22, 2010, to December 1, 2011. Note: if the state fails to correct its SIP by the deadline, the CAA
requires EPA to promulgate a FIP for the state. (See “September 2, 2010” above for proposed
rule.)
December 21: EPA enters into settlements agreeing to issue new source performance
standards for GHG emissions from “electric generating units” (power plants) and
petroleum refineries. Available at http://www.epa.gov/airquality/pdfs/boilerghgsettlement.pdf
(power plants) and http://www.epa.gov/airquality/pdfs/refineryghgsettlement.pdf (petroleum
refineries). The two settled lawsuits were petitions for review of EPA amendments to its existing
new source performance standards (NSPSs) for, respectively, electric generating units23 and
petroleum refineries.24 On each occasion, petitioners objected, EPA had declined to introduce
NSPSs for GHG emissions. In the settlements, EPA agrees to (a) propose by July 26, 2011,
NSPSs for GHG emissions from new/modified electric generating units and guidelines for
existing electric generating units, then promulgate final NSPSs and guidelines by May 26, 2012,
and (b) propose by December 10, 2011, NSPSs for GHG emissions from new/modified petroleum
refineries and guidelines for existing petroleum refineries, then promulgate final NSPSs and
guidelines by November 10, 2012. EPA may withdraw its approval of either settlement within 30
days after the public comment period. Note: EPA has not yet proposed either the NSPSs for
20 EPA is required to promulgate a FIP when a state fails to make a required SIP revision. CAA §110(c)(1), 42 U.S.C.
§7410(c)(1).
21 42 U.S.C. §7475(a)(4).
22 As required by CAA §110(k)(5), 42 U.S.C. §7410(k)(5).
23 71 Fed. Reg. 9,866 (2006).
24 73 Fed. Reg. 35,838 (2008).
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electric generating units or for petroleum refineries, and thus has missed both proposal deadlines
in the settlements.
December 30: EPA finalizes rule to narrow previous approval of state Title V permitting
programs that apply to GHG-emitting stationary sources. 75 Fed. Reg. 82,254. This rule is a
companion to that below. It narrows EPA’s previous approval of state Title V operating permit
programs so that only stationary sources that exceed the GHG thresholds established in the
“tailoring rule” (see “June 3, 2010” above) are covered as major sources by the federally
approved Title V programs in the affected states. By thus raising the GHG emissions thresholds
that apply Title V permitting to major sources in the affected states, this rule aims to reduce the
number of stationary sources that will be required to have Title V permits, and thereby reduce
Title V permitting burdens for state permitting agencies and sources in the affected states.
December 30: EPA finalizes rule to narrow previous approval of SIP PSD programs that
apply to GHG-emitting stationary sources. 75 Fed. Reg. 82,536. This rule is a companion to
that above. It narrows EPA’s previous approval of SIP PSD programs that apply to GHG-emitting
stationary sources, by withdrawing approval of those programs to the extent they apply PSD to
GHG-emitting sources below the thresholds in the “tailoring rule” (see “June 3, 2010” above). By
thus raising the thresholds in 24 states above the statutory threshold, this rule aims to reduce the
number of new stationary sources, or major modifications of existing sources, that will be
required to have PSD permits, and thereby reduce PSD permitting burdens for state permitting
agencies and sources in the affected states.
December 30: EPA establishes GHG PSD federal implementation plans for seven states. 75
Fed. Reg. 82,246. Following up on the December 13, 2010, SIP call (see above), this EPA rule
finalizes a FIP to apply in each of the seven states that did not submit by the December 22, 2010,
EPA deadline a revised SIP to apply their EPA-approved PSD program to GHG emissions. These
states are: Arizona (most of state), Arkansas, Florida, Idaho, Kansas, Oregon, and Wyoming.
Other states have later deadlines. The FIP ensures that a permitting authority—that is, EPA—is
available in these states as of January 2, 2011, the date when the CAA’s PSD requirements begin
applying to GHG-emitting sources (see “April 2, 2010” for how January 2, 2011, was chosen).
Without a permitting authority to issue CAA-required permits, proposed major stationary sources
and major modifications of existing sources could not begin construction if they would emit
GHGs in quantities above the tailoring rule thresholds. (See “September 2, 2010” for proposed
FIP.)
December 30: EPA converts previous full approval of Texas’s PSD program to partial
approval, and promulgates FIP applying PSD to large GHG-emitting stationary sources.
75 Fed. Reg. 82,430. In this rule, EPA finds that it erred when it fully approved Texas’s PSD
program in 1992, since the program did not address its application to all pollutants newly subject
to regulation, including GHGs. As a result, this rule changes EPA’s 1992 approval from full to
partial.25 This change requires EPA under the CAA to issue a FIP,26 which the rulemaking also
does. Under the FIP, EPA will become the permitting authority for proposed GHG-emitting
stationary sources in Texas in accordance with the emissions thresholds in the tailoring rule.
Without a permitting authority to issue CAA-required permits, proposed major stationary sources
25 See CAA §110(k)(6), 42 U.S.C. §7410(k)(6).
26 See CAA §110(c)(1), 42 U.S.C. §7410(c)(1).
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and major modifications of existing sources in Texas could not begin construction if they would
emit GHGs in quantities above the tailoring rule thresholds.
2011
July 20: EPA finalizes rule deferring application of PSD and Title V permitting
requirements to CO2 emissions from bioenergy and other biogenic stationary sources. 76
Fed. Reg. 43,490. Such CO2 emissions are generated by combustion or decomposition of
biologically based material—as at solid waste landfills, manure management operations, and
electric utilities burning biomass fuels. The deferral, to allow EPA more time to examine how to
account for such emissions, is for three years. During this period, biogenic emissions are not
required to be counted for determining whether a source is subject to PSD and Title V permitting.
The deferral applies only to CO2 emissions and does not affect non-GHG pollutants or other
GHGs emitted from the combustion of biomass fuel. EPA is taking this action as part of granting
the petition for reconsideration filed by the National Alliance of Forest Owners on August 3,
2010, related to the tailoring rule (see “June 3, 2010” above).
September 15: EPA and NHTSA jointly finalize rules setting GHG emission standards and
fuel economy standards for 2014 and later model year medium- and heavy-duty vehicles. 76
Fed. Reg. 57,106. These rules, weighing in at 958 pages (including preamble), respond to a
presidential memorandum of May 21, 2010.27 EPA’s emission standards and NHTSA’s fuel
economy standards apply to three categories of heavy-duty vehicles: combination tractors, heavy-
duty pickup trucks and vans, and vocational vehicles. The rules include separate standards for the
engines that power combination tractors and vocational vehicles. Certain rules are exclusive to
EPA, such as EPA’s hydrofluorocarbon standards to control leakage from air conditioning systems
in combination tractors, and pickup trucks and vans. EPA’s emission standards will begin with
model year 2014. NHTSA’s fuel economy standards are voluntary in model years 2014 and 2015,
becoming mandatory for most vehicle categories in model year 2016.
December 1: EPA and NHTSA jointly propose rules setting GHG emission standards and
fuel economy standards for 2017-2025 model year light-duty vehicles. 76 Fed. Reg. 74,854.
These rules, 893 pages long (including preamble), respond to a presidential memorandum of May
21, 2010.28 The standards will apply to passenger cars, light-duty trucks, and medium-duty
passenger vehicles and will build on the model year 2012-2016 light-duty-vehicle standards (see
“May 7, 2010” above). California and 13 auto manufacturers have provided letters of support for
this new phase. EPA’s emission standards will be more stringent each year from 2017 to 2025,
achieving, as an industry fleetwide average, the equivalent of 54.5 miles per gallon (mpg) in
model year 2025. NHTSA’s CAFE standards will increase annually and require, as an industry
fleetwide average, 49.6 mpg in model year 2025. Various factors explain the 54.5/49.6 difference.
See entry for May 7, 2010, for statutory and historical background.
27 See note 22 supra.
28 See note 22 supra.
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2012
March 8: EPA proposes under the tailoring rule to leave the GHG major source thresholds
unchanged. 77 Fed. Reg. 14226. Under step 1 of the tailoring rule (see “June 3, 2010”), which
began on January 2, 2011, stationary sources above the tailoring-rule GHG threshold that are
required to obtain a PSD or Title V permit anyway due to emissions of other pollutants must
address their GHG emissions in the permit. Under step 2, effective July 2, 2011, sources with
GHG emissions above the tailoring-rule threshold also are required to obtain a PSD or Title V
permit, even if they would not fall under these programs based on emissions of other pollutants.
In this proposal, EPA finds that the capabilities of state permitting authorities have not improved
enough for additional GHG sources to be brought under PSD or Title V through step 3. Therefore,
EPA proposes to leave the GHG major source thresholds unchanged at this time. EPA also
proposes two “streamlining” approaches to improve the administration of the GHG PSD and Title
V permitting programs.
April 13: EPA proposes new source performance standards for CO2 emissions from new
fossil-fuel-fired electric generating units. 77 Fed. Reg. 22,392. The proposed rule, pursuant to
CAA Section 111, would require new fossil-fuel-fired electric generating units (power plants) of
greater than 25 megawatt capacity to meet an output-based standard of 1,000 pounds of CO2 per
megawatt-hour—a standard based, according to EPA, on the performance of widely used natural
gas combined cycle technology. EPA had committed to issuing this proposed rule by July 26,
2011, in a settlement of litigation. See “December 21, 2010.”
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Federal Agency Actions Following the Supreme Court's Climate Change Decision
Appendix. Table of Acronyms
Acronym
BACT
Best available control technology. This is the pollution control standard in PSD areas. BACT is
defined in Clean Air Act Section 169(3).
CAA
Clean Air Act. Codified at 42 U.S.C. §§7401-7671q.
CAFE
Corporate average fuel economy. The text uses “CAFE standards” synonymously with “fuel
economy standards.”
CEQ
Council on Environmental Quality, the agency charged with monitoring executive branch
implementation of the National Environmental Policy Act. 42 U.S.C. §§4342, 4344.
EPA
Environmental Protection Agency
FIP
Federal implementation plan. Clean Air Act Section 110(c) requires EPA to issue a FIP for a
state, setting out emission limits for stationary sources in the state, whenever the state fails to
submit a required SIP or a state-submitted SIP does not meet minimum criteria.
GHG Greenhouse
gas
NEPA
National Environmental Policy Act. 42 U.S.C. §4321 et seq. NEPA requires federal agencies to
prepare environmental impact statements for proposed “major federal actions significantly
affecting the quality of the human environment.” Id. at §4332(2)(C).
NHTSA
National Highway Traffic Safety Administration
NSPS
New source performance standards. These apply to any stationary source of emissions the
construction or modification of which is begun after the NSPS is proposed. Defined in Clean
Air Act Section 111(a)(1).
PSD
Prevention of significant deterioration. Under the Clean Air Act, PSD areas are regions where
the ambient concentration of a pol utant is below (cleaner than) the National Ambient Air
Quality Standard for that pol utant, triggering the act’s regime for “preventing significant
deterioration” of that air quality. See 42 U.S.C. §§7470-7492.
SEC
Securities and Exchange Commission
SIP
State implementation plan. Clean Air Act Section 110(a)(1) requires each state to submit a SIP
to EPA to achieve each National Ambient Air Quality Standard within that state. The state has
discretion in imposing emission limits on stationary sources within the state as long as the
National Ambient Air Quality Standard is achieved.
Author Contact Information
Robert Meltz
Legislative Attorney
rmeltz@crs.loc.gov, 7-7891
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