GHG Permitting After the Supreme Court: What's the Big Deal "Anyway"?
In the wake of the U.S. Supreme Court's decision last summer in Utility Air Regulatory Group v. EPA, what's happening with GHG permitting? Both EPA and its detractors claimed victory, with a majority of the court striking down EPA's "Tailoring Rule", while a separate majority upheld EPA's application of the best available control technology (BACT) for so-called "anyway" sources, i.e., those that were already classified as major sources under the PSD regulations for their emissions of criteria pollutants. EPA claims that its program would have covered 86% of stationary source GHG emissions and, as spared by the Supreme Court, still covers 83% of those emissions. EPA has since come up with limited guidance on the meaning of the decision and launched a rulemaking to establish a de minimis threshold. And, on April 10, 2015, the D.C. Circuit issued its long-awaited decision on remand in Coalition for Responsible Regulation, Inc. v. EPA, clearing the way for permitting to continue with respect to anyway sources; but several questions remain unanswered:
- What significance threshold will EPA apply to GHGs?
- Are GHG permits still required under state laws that adopted the Tailoring Rule thresholds?
- What California air districts will continue requiring GHG permits for non-anyway sources?
- What about those states that adopted automatic rescission provisions in their SIPs?
- How has GHG BACT evolved and what has it meant for the largest sources in California?
- Alexander Crockett, Assistant District Counsel, Bay Area Air Quality Management District
- Gerardo Rios, Chief, Air Permits Office, U.S. EPA Region 9