EPA announces greenhouse gases endanger public

Dec 11, 2009
by WLJ

EPA announces greenhouse gases endanger public health

The U.S. Environmental Protection Agency (EPA) announced its finding last Tuesday that greenhouse gases (GHG) are a threat to the public health and welfare of the American people. That finding is the first step toward agency regulation of the six most common GHG emissions in the U.S., carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. To no one’s surprise, the finding coincided with the opening of climate negotiations in Copenhagen, Denmark.

The ruling means that the agency can rapidly move forward with regulations which will limit GHG emissions or penalize industries which are commonly blamed for climate change, including agriculture. Many in the industry note that the EPA finding is a political move meant to push Congress to act on the matter. The alternative, allowing EPA to impose restrictions, perhaps on operations emitting as little as 250 tons of GHG emissions annually, is highly unpalatable to members of Congress and their constituents who stand to face tougher restrictions under EPA’s rule than those that may eventually be passed by Congress.

"It’s an extremely political solution that comes at the detriment of ranchers and the U.S. economy," said U.S. Cattlemen’s Association executive vice president, Jess Peterson. "We need to get Congress to act on an incentives-based approach to the problem, rather than the regulatory approach that EPA will take."

Peterson noted that it’s unlikely Congress will have time to take on climate change legislation that has been sitting in the Senate before the end of the year. The House of Representatives has already passed a climate bill, one that provided exemptions for agriculture, earlier this year. As a result, he said, the threat of EPA action is being used by the White House to push Congress to act on the matter quickly to avoid more punitive regulations.

The result could mean a great deal of uncertainty for businesses in the U.S. because EPA action is likely to be tied up for years as a result of lawsuits.

"The EPA regulating GHG emissions under the Clean Air Act is a stretch and it’s one that’s going to result in a lot of lawsuits as businesses challenge the regulations in court," said Peterson. "The result is going to create some long policy gaps, and those aren’t good for agriculture or any other industry in the U.S."

The advantage of Congress passing a climate change bill is that there are a number of key Senators and members of the House who will stand up for agriculture and other industries to prevent regulations which are overly harsh for business. In fact, agriculture won an exemption from GHG emission caps in the House plan passed earlier this year and the Senate inserted an amendment in the Department of the Interior appropriations bill, passed last month, which provides livestock operations with a one-year exemption from any potential climate change laws which may eventually be implemented. EPA action is unlikely to provide similar relief from regulation, which could open the door to further court challenges.

Other groups were also highly critical of the EPA decision last week, with most saying that the rules will place the U.S. at a disadvantage to other nations which are choosing not to participate in regulations which cap emissions.

National Cattlemen’s Beef Association (NCBA) went one step farther in criticizing the ruling, saying it could be "devastating" to agriculture.

"It’s premature to issue this kind of finding, especially given the recent controversy surrounding the scientific validity of alleged human contributions to climate change," said Tamara Thies, NCBA chief environmental counsel. "Regulation of greenhouse gases should be based on science, and it should be thoughtfully considered and voted on by Congress through a democratic process, not dictated by the EPA."

NCBA reported that the endangerment finding does not itself regulate GHGs; but unless Congress acts, it sets in motion EPA regulation of GHGs from stationary sources and the setting of new source performance standards for GHGs. On Oct. 27, 2009, EPA proposed a rule designed to regulate GHG emissions from sources that emit 25,000 tons per year or more instead of the statutory 250 tons per year threshold for pollutants which is included in the Clean Air Act. The extent to which EPA can change statutory permitting requirements, however, is unclear. Only time will tell how our federal courts will address citizen suits to force regulation of all sources that emit GHGs in excess of the statutory thresholds. EPA indicated that it also would be developing an approach to regulate GHGs from hundreds of thousands of small operations, including farms and buildings.

NCBA noted that the finding could create new regulatory burdens for producers who have never, in the past, been required to obtain permits for GHG emissions. Now, under the EPA’s authority, an additional 2 million facilities may be required to obtain permits.

"Congress never intended for the Clean Air Act to be used for greenhouse gas regulation," said Thies. "While the act has done a good job of cleaning up pollutants, it is not adequately equipped to address global climate change. Any attempts to use it for this purpose would be devastating to U.S. agriculture."

According to the EPA, in 2007, GHG emissions from the entire agriculture sector represented less than 6 percent of total U.S. GHG emissions. At the same time, land use, land use change, and forestry activities resulted in a net carbon soil sequestration of approximately 17.4 percent of total U.S. CO2 emissions, or 14.9 percent of total U.S. greenhouse gas emissions.

"Agriculture actually provides a significant net benefit to the climate change equation," said Thies. "Rather than being subject to overly-burdensome regulations, agriculture should be rewarded for the carbon reductions we provide." — John Robinson, WLJ Editor