Calling Jim Hansen
Sometimes half a loaf is all you get. The EPA Appeals Board has just issued a ruling on the application of the Deseret Power Electric Cooperative to construct a coal powered plant. A permit issued by the U.S. EPA Region 8 had been challenged by the Sierra Club on the grounds, well on a lot of grounds, but principally in Massachusetts vs EPA the Supreme Court had agreed that CO2 was an air pollutant and that therefore the EPA had to set limits on its emissions under the Clean Air Act.
See if you can spot the thorn in the Appeals Board Ruling:
Although the Supreme Court determined that greenhouse gases, such as CO2 , are “air pollutants” under the CAA, the Massachusetts decision did not address whether CO2 is a pollutant “subject to regulation” under the Clean Air Act. Massachusetts v. EPA. The Region maintains that it does not now have the authority to impose a CO2 BACT limit because “EPA has historically interpreted the term ‘subject to regulation under the Act’ to describe pollutants that are presently subject to a statutory or regulatory provision that requires actual control of emissions of that pollutant.” We hold that this conclusion is clearly erroneous because the Region’s permitting authority is not constrained in this manner by an authoritative historical Agency interpretation.Given that EPA will be under new management a lot before this record is developed and that a record must developed to support any ruling, look forward to a fun fest. BTW this is happening in Bonanza, Utah.
By our holding today, we do not conclude that the CAA (or an historical Agency interpretation) requires the Region to impose a CO2 BACT limit. Instead, we conclude that the record does not support the Region’s proffered reason for not imposing a CO2 BACT limit – that although EPA initially could have interpreted the CAA to require a CO2 BACT limit, the Region no longer can do so because of an historical Agency interpretation. Accordingly, we remand the Permit to the Region for it to reconsider whether or not to impose a CO2 BACT limit and to
develop an adequate record for its decision.