EPA Takes a Critical Step Forward on Regulating C02

EPA Administrator Lisa Jackson took an important first step toward controlling carbon dioxide (CO2) in announcing that the EPA will take a fresh look at a Bush Administration rule prevent the regulation of CO2 emissions from coal-fired power plants and other sources.

Jackson granted a petition for reconsideration filed by the Natural Resources Defense Council (NRDC), Sierra Club and Environmental Defense Fund, and asked the EPA to reexamine the December 18, 2008 memorandum by former EPA Administrator Stephen Johnson. These petitioners have also filed a case in the U.S. Court of Appeals for the D.C. Circuit raising legal challenges to the same memorandum.

Following is a statement by Patrice Simms, Senior Attorney in the Clean Air Program at NRDC:

"This is another blow to coal-fired plants and other polluters that will help deliver Americans cleaner air. EPA Administrator Jackson recognizes the significant legal flaws inherent in the Johnson memorandum and is clearly choosing a new, more responsible direction for the EPA. To protect people's health and follow the law, it makes no sense to build new CO2 sources without requiring strong limitations on their emissions. The EPA is putting coal plants and other new large polluters on notice that the policy of ignoring CO2 emissions is coming to an end."

Background:

The Johnson memorandum reflected the Bush administration's legal interpretation of the Clean Air Act, concluding that EPA need not establish Best Available Control Technology (BACT) emission limits for CO2 from large new pollution sources, including coal-fired power plants. The memorandum was drafted after the Environmental Appeals Board (which hears appeals of EPA-issued permits) ruled in November that the Clean Air Act did not preclude CO2 emission limits for new sources - sending at least two Bush-era power plant permits back to the drawing board. The Johnson memorandum purported to be a lawful response to the EAB's November 2008 Order, despite the agency's failure to provide an opportunity for public notice and comment.

In her letter granting reconsideration of the Johnson memorandum, Administrator Jackson commits to a notice and comment process to address all issues raised by the memorandum and the November 2008 EAB decision. In the interim, Jackson makes clear that the memorandum has no binding effect on state-issued permits and that "given the Agency's decision to grant reconsideration of the memorandum, other PSD permitting authorities should not assume that the memorandum is the final word on the appropriate interpretation of Clean Air Act requirements."