U.S. EPA said today that it will reconsider a Bush-administration memorandum describing why the government should not regulate carbon dioxide emissions from new coal-fired power plants.
In a letter to the Sierra Club, EPA Administrator Lisa Jackson said the agency would grant the advocacy group's petition seeking reconsideration of former Administrator Stephen Johnson's memo.
Environmentalists have argued that the memo unlawfully tries to establish a new and binding interpretation of the Clean Air Act that violates a decision by EPA's Environmental Appeals Board, which said the agency must consider global warming emissions when issuing permits for new coal-fired power plants.
Industry groups had welcomed Johnson's memo, arguing that the appeals board's decision opened up the possibility for a host of new Clean Air Act regulations on even small pollution sources like schools and hospitals.
The Sierra Club, the Environmental Defense Fund and the Natural Resources Defense Council sued EPA last month in the U.S. Circuit Court of Appeals for the District of Columbia, asking the court to overturn the memo. Today was the deadline for the groups to file a motion to stay the memo, or put it on hold, which would have put EPA in the position of having to defend it, said David Bookbinder, Sierra Club's chief climate counsel.
Jackson's letter says EPA will allow for public comment on concerns raised over the memorandum and the appeals board's decision but declined to grant the stay.
If the agency were to stay the memo immediately, Bookbinder said, it could trigger an obligation under the Clean Air Act for broad-ranging regulations targeting even very small sources of carbon emissions.
"The Clean Air Act has language in there that is kind of all or nothing for if CO2 gets regulated, and it could be unbelievably complicated and administratively nightmarish for both EPA and the states if they were to yank the Johnson memo and not have something in place that makes it clear that we're going after only the very large sources," he said.
Bookbinder welcomed Jackson's letter as a win-win approach for environmentalists and the agency.
"We're sympathetic to EPA's desire to have an intelligent, thought-out program ready to go," he said.
Within six months, Bookbinder said, he expects the agency to release a proposal requiring best available control technology for new sources emitting more than 25,000 tons a year, which would apply to all major power plants, refineries and other large sources.
EPA said it plans to publish a notice of proposed rulemaking soon in the Federal Register.
In the meantime, Jackson noted, "permitting authorities should not assume that the memorandum is the final word on the appropriate interpretation of Clean Air Act requirements."
Click here to read EPA's letter to the Sierra Club.
Click here to read the Johnson memo.