Obama EPA Backs Bush Legal Determination on Greenhouse Gases

Politics and practicality make strange bedfellows. On April 2, 2010 EPA published a memorandum supporting, and even expanding in some ways, a memorandum that was published in the waning days of the Bush Administration that explained why greenhouse gases were not subject to regulation in Clean Air Act permits. That earlier memo had drawn a lot of fire from environmentalists, because it seemed a blatant attempt to avoid the Supreme Court's determination that CO2 is a pollutant, and that it had to be regulated as such if EPA determined that it presented a danger to human health and welfare. Once a pollutant is regulated, it has to be controlled in air pollution permits.

In December of 2009 EPA issued its endangerment decision, which led environmentalists to believe that CO2 limits should be placed in air permits immediately. That would have been disastrous, as CO2 is such a ubiquitous "pollutant" that regulating it would have created a nightmare for state and federal permit writers. Instead, EPA found it wiser to agree with the Bush Administration that imposition of permit limits for greenhouse gases does not kick in until GHG controls are put into effect for a source category - merely being a pollutant that should be regulated is not enough to result in immediate permit limits for that substance.

The first greenhouse gas regulations will be implemented on Jan 2, 2011, when the automotive emissions rules will become effective. At that time, all other sources of CO2 will be subject to regulation as well (although special, higher thresholds will apply to CO2 than to other priority pollutants). I predict Congress will do something about GHG regulations before that time.