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The Competitive Enterprise Institute (CEI) and more than a dozen other conservative groups filed an amicus brief March 21 against a Sierra Club petition demanding that EPA regulate carbon dioxide (CO2) emissions from new electric power plants. (The amicus brief can be read at CEI.org.)

CEI was joined by Freedom Works, National Center for Public Policy Research, American Conservative Union, American Legislative Exchange Council, Americans for Prosperity Foundation, Americans for Tax Reform, Citizens Against Government Waste, Congress of Racial Equality, Frontiers of Freedom Institute, Independent Women’s Forum, National Center for Policy Analysis, National Taxpayers Union, and 60 Plus Association.

The purpose of the Clean Air Act is to protect public health and welfare from hazards created by airborne pollutants. The act’s fundamental logic requires that EPA first determine the dangerousness of an air pollutant before taking steps to regulate it. In the case of CO2, EPA has not yet issued a finding that CO2 emissions endanger public health or welfare. Sierra Club’s “regulate first, ask questions” later approach stands the logic of the Clean Air Act on its head.

The Sierra Club claims that the Supreme Court global warming case, Massachusetts v. EPA (April 2, 2007), supports its position that CO2 is an air pollutant currently “subject to regulation” for purposes of the Prevention of Significant Deterioration (PSD) program.
“The Sierra Club’s petition is preposterous,” said CEI Senior Fellow Marlo Lewis. “The issue in Massachusetts v. EPA was whether EPA had to regulate CO2 emissions from new motor vehicles, under Section 202, a provision dealing solely with mobile source emissions. The court specifically said it was not ordering EPA to establish new tailpipe standards or even that EPA had to issue or deny an endangerment finding regarding CO2, only that EPA’s action or inaction must be grounded in the statute. In no way, shape or form did the court tell EPA it had to regulate CO2 emissions from stationary sources, such as the [new coal-fired] Bonanza [Utah] power plant.”

If Sierra Club wins the litigation, potentially hundreds of thousands of previously unregulated small- to mid-sized farms, factories and buildings would have to go through the costly and time-consuming PSD permitting process, because the statutory threshold for regulation under PSD is 250 tons a year. “Two hundred and fifty tons may be a significant amount of smog- or soot-forming emissions, but it is a minuscule amount of CO2,” said Lewis. A commercial kitchen that uses natural gas for cooking, or a mid-sized office building heated with gas or oil probably emits 250 tons of CO2 annually.

PSD permits can take more than a year and hundreds of thousands to millions of dollars to obtain. If PSD is applied to CO2, EPA and its state-level counterparts will likely be flooded with permit applications, diverting administrative resources from more critical, statutorily required Clean Air Act responsibilities. Construction activities around the country could come to a screeching halt.

“We could end up with the regulatory equivalent of a dozen Kyoto Protocols without Congress’s ever voting on it or any of the Sierra Club’s allies on the Hill taking any responsibility for the administrative morass and damage to the economy,” said Lewis.
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