State, federal fight brewing over EPA emission rules

A growing number of state officials and the Senate's top global warming skeptic are urging U.S. EPA to reconsider its plans to implement climate rules for stationary sources.

EPA is planning to take over permitting programs for states that can't or won't comply with the Obama administration's climate rules by next year, but some officials are arguing that the agency has not given them enough time to align with the federal program and that it is premature to force states to comply with regulations that are being challenged in court.

Democratic Wyoming Gov. Dave Freudenthal yesterday became the latest state official to criticize EPA's plans to bring states into alignment.

Freudenthal said his state will not have the authority to implement the agency's "tailoring rule" for greenhouse gases -- which would require some large facilities to limit their greenhouse gas emissions -- by EPA's Jan. 2 deadline. Wyoming would first need to amend state law, which could not occur before the 2011 legislative session, he said.

"I have serious concerns about EPA's implementation timelines," Freudenthal wrote in comments to EPA. "Given that there are dozens of petitions concerning not only the Tailoring Rule but also the foundation for that rule, there is a high likelihood that any permitting strategy imposed on the states at this juncture is premature."


Dozens of groups including states, industries and advocacy groups have asked a federal appeals court to review EPA's tailoring rule, endangerment finding and other climate policies in cases that are pending. Many observers say the tailoring rule may get tossed out in court because it seeks to change emission limits set in the Clean Air Act, while EPA argues that the rule has a solid legal foundation.

Freudenthal said he is also concerned that EPA has not yet issued information for states about how they should curb greenhouse gas emissions from industrial sources, although the agency is expected to soon release that guidance. The application of "best available control technology" that will be required for regulated sources "is poorly understood for the myriad of sources subject to the new rule and will not likely be clear anytime soon," he wrote.

Ben Grumbles, director of Arizona's Department of Environmental Quality and former EPA water chief under President George W. Bush, has also asked EPA to reconsider its implementation plans.

"ADEQ does not agree that EPA's position has resulted in Arizona's program becoming inadequate," Grumbles wrote in an Aug. 27 letter to Jackson and EPA Region 9 Administrator Jared Blumenfeld. Arizona does not apply permitting requirements to greenhouse gas emitting sources, Grumbles said.

He also voiced concerns that the tailoring rule could be tossed out in court. "Arizona is not in a position to expend significant resources chasing rules contrary to the State's policies on renewable energy and that may not survive legal challenges," Grumbles said.

EPA last month said 13 states were not prepared to regulate the heat-trapping emissions from stationary facilities and asked other states to comment as to whether they could meet the January deadline. The states were Alaska, Arizona, Arkansas, California, Connecticut, Florida, Idaho, Kansas, Kentucky, Nebraska, Nevada, Oregon and Texas. Wyoming was not among the states initially identified by EPA.

The agency last month issued a draft rule that seeks to allow for states that are not prepared to revise their regulatory programs and a separate proposal that would allow EPA to take over permitting requirements for states that do not revise their programs in time (E&ENews PM, Aug. 12).

An EPA spokesperson said today that "the vast majority of states are working to include the common-sense steps EPA put forth to address greenhouse gas into their permitting by January 2011."

Inhofe prods EPA to release state comments

Meanwhile, Sen. James Inhofe (R-Okla.) is urging EPA to release information about how states plan to comply with the rules, arguing that the agency has failed to disclose information about policies that he says will harm jobs and the economy.

Inhofe, the ranking member on the Senate Environment and Public Works Committee and the Senate's most vocal global warming skeptic, wants EPA to release states' comments regarding whether they must change their laws or regulations in order to comply with the agency's climate rules for stationary sources.

"As numerous public comments to the Agency from a wide array of businesses and public officials from both parties have noted, the greenhouse gas regulatory edifice EPA is constructing will harm jobs, economic growth, manufacturing competitiveness, and state operating budgets," Inhofe said in a letter sent Aug. 18 to EPA. Therefore, he said, it is important to release all relevant information to the public regarding EPA's proposals to implement greenhouse gas permitting rules.

EPA's tailoring rule appears to fall short of giving businesses certainty about the impact of federal and state regulations, Inhofe said. He also expressed concerns that businesses may have to comply with overlapping state and federal programs in cases where EPA takes over state permitting programs.

Inhofe asked the agency to release states' comments by Sept. 3, but he said yesterday that he still has not received the information.

"I want to thank EPA staff for responding quickly to inquiries about the status of my request, but the fact is I sought this information by Sept. 3; it's now Sept. 9 and I still don't have the comments," Inhofe said yesterday in a statement.

"EPA's plan all along has been to release these letters as an attachment to our response to Senator Inhofe's letter, which we will send shortly," the EPA spokesperson said. "We will also post all of the letters on EPA's website in one central location to ensure the public has easy access to them."

Click here to read Inhofe's letter.

Click here to read the Wyoming letter.

Click here to read the Arizona letter.

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