CLIMATE:

EPA reconsiders 'Johnson memo'

U.S. EPA yesterday launched a formal reconsideration of a Bush-era memorandum detailing when the government should regulate carbon dioxide emissions from industrial facilities.

The agency is reconsidering a document from former EPA Administrator Stephen Johnson detailing when the government must regulate carbon dioxide emissions from new and modified stationary sources, including coal-fired power plants. The Obama EPA is considering several interpretations of when a pollutant must be accounted for in clean air permits but said it would prefer to uphold the George W. Bush administration's policy.

The "Johnson memo" says that facilities should be required to obtain Prevention of Significant Deterioration (PSD) permits only for pollutants that are controlled under the Clean Air Act. In its reconsideration, EPA said it continued to favor that interpretation.

"The actual control interpretation best reflects our past policy and practice, is in keeping with the structure and language of the statute and regulations, and best allows for the necessary coordination of approaches to controlling emissions of newly identified pollutants," EPA said.

EPA is also taking comment on several other interpretations of when pollutants are covered by the permitting program, including an approach that would identify pollutants as subject to regulation if EPA requires monitoring and reporting of those emissions.

"Now that EPA has opened the door to reconsideration, it probably feels bound to initiate a public process that invites a myriad of views into the discussion before finalizing its position," said Roger Martella, former EPA general counsel during the George W. Bush administration. At this time, he said, "EPA appears to be sticking with Administrator Johnson's position, which also happens to be the legally correct interpretation."

EPA Administrator Lisa Jackson announced in February that the agency would reconsider the memo after environmental groups asked a federal appeals court to overturn the document. The environmental groups argued that the memo unlawfully tried to establish a new and binding interpretation of the Clean Air Act in violation of EPA's Environmental Appeals Board ruling that the agency must consider global warming emissions when issuing permits for new coal-fired power plants (Greenwire, Feb. 17).

But because EPA is poised to issue a rule to control greenhouse gas emissions from automobiles by March 2010, experts say the reconsideration is largely moot at this point.

"It is really not very consequential, because it's been overtaken by events," said Jeff Holmstead, an attorney at Bracewell & Giuliani who served as EPA air chief during the George W. Bush administration.

Vickie Patton, a senior attorney with the Environmental Defense Fund, said that although EPA is exploring a number of options to interpret the Johnson memo, "The fact that the agency will complete work on the national emission standards for passenger vehicles by March means that the differences between the legal interpretations have much less of a practical effect."

David Bookbinder, the Sierra Club's chief climate counsel, said that EPA's position was understandable, given that its preferred alternative would put the trigger for PSD permitting in the agency's hands. However, he said, "I'm not sure it's correct under the Clean Air Act." The Sierra Club, which petitioned EPA to reconsider the memo earlier this year, will be advocating for one of the other triggers, Bookbinder said.

EPA will accept comments on its proposal for 60 days after publication in the Federal Register.

Click here to read the Johnson memo.

Click here to read EPA's reconsideration.