On March 21, the NAM joined with six other organizations in an amicus brief supporting EPA’s 2007 approval of a preconstruction permit for a new power plant in Utah. The Sierra Club appealed the approval, arguing that the EPA must limit carbon dioxide (CO2) emissions in the permit.
Our brief argued that the EPA’s permitting process should not be turned into a regulatory tool to control CO2 emissions. The EPA had already determined that CO2 was not a regulated pollutant and thus did not need to be addressed within a preconstruction permit.
On June 16, the EAB issued an order requesting further briefing on whether carbon dioxide monitoring requirements are enforceable under the Clean Air Act, and on the effect of the Supreme Court's decision in Massachusetts v. EPA.
On September 12, the NAM and five other organizations filed a supplemental brief. First, we argued that CO2 is not currently regulated under the Clean Air Act, as there is only monitoring of, not restrictions on emissions of, CO2. Second, we argued that that the issues the EAB seems to be focusing on go beyond its authority, and that any expansion of the preconstruction permit program to greenhouse gases is a determination that should be made by the EPA Administrator, via rulemaking, or by Congress.
On Nov. 13, 2008, the Environmental Appeals Board rejected the Sierra Club's contention that permits must include "best available control technology" for carbon dioxide, but sent the case back to the EPA to reconsider whether to impose the requirement under its discretionary authority, and to develop an adequate record for its decision. It encouraged the EPA to consider whether the issue in this case should be resolved "in the context of an action of nationwide scope, rather than through this specific permitting proceeding."
Former EPA Administrator Stephen Johnson issued an interpretative guidance memorandum on Dec. 18 that concluded that PSD permits do not need to include BACT limits for greenhouse gases. The Sierra Club is challenging that guidance. If they succeed, the number and type of facilities (e.g., any which emit certain levels of CO2) requiring EPA permits would explode, resulting in an impassable regulatory gridlock that would overwhelm permitting authorities and bring new permits to a halt. Under such a scenario, even large department stores, schools, and medium-size office buildings would require Clean Air Act preconstruction permits in order to be built or expanded.