EPA Ignores Own Preferences and Moves to Regulate CO2

Yesterday, the Environmental Protection Agency moved to regulate carbon dioxide under the Clean Air Act, an action that was only expected if Congress chose not to pass the energy tax putting a price on CO2 emissions.  The EPA's proposed rule would require companies to "obtain permits that would demonstrate they are using the best practices and technologies to minimize GHG emissions."

This announcement runs contrary to what Obama and the EPA have stated they prefer, namely some form of legislation to reduce carbon to avoid the pitfalls and inefficiencies of bureaucratic regulation.

Early in September, EPA administrator Lisa Jackson told reporters, "Legislation is so important, because it will combine the most efficient, most economy-wide, least costly (and) least disruptive way to deal with carbon dioxide pollution...We get further faster without top-down regulation."

As late as last week Jackson said, "I think legislation is the best way" to regulate carbon. 
In a 2007 court case, Massachusetts V. EPA, the Supreme Court determined that the EPA had the authority to regulate greenhouse gases (including CO2) under the Clean Air Act.  The EPA issued an endangerment finding in April that stated CO2 was a pollutant and threatens public health, paving the way for new EPA regulation of greenhouse gases.

According to the EPA's latest proposal, only those sources emitting 25,000 tons of CO2 per year would be affected. But as several critics have pointed out, the Clean Air Act actually states that the EPA is required to regulate all sources of pollutants that emit more than 250 tons per year. If applied to CO2, this would mean even small businesses would be regulated by EPA.

The EPA denies that this will be the case, claiming that the 250 tons per year threshold is "not feasible" for greenhouses gases like carbon dioxide, and thus proposed this "tailoring rule" to exempt CO2.

But as the National Association of Manufacturers points out, there is "no provision in the statute that gives the EPA the authority to set an arbitrary higher figure" for the threshold.  In other words, the EPA does not have the ability to change the Clean Air Act provisions, so small businesses and farms could realistically be covered by EPA's regulations.

UPDATE:  Democratic West Virginia Governor Joe Manchin, after learning about the EPA's action, says he plans to "raise a lot of cane" in opposition.  Manchin painted a dim portrait of the federal government's intentions:  "Right now, my belief is that they're trying to kill off surface mining through regulation what they cannot get done through legislation."