Potential Regulation of Greenhouse Gas Emissions Under the Clean Air Act

The National Mining Association (NMA) filed comprehensive comments Nov. 28 on the U.S. Environmental Protection Agency's (EPA) Advanced Notice of Proposed Rulemaking (ANPR) for regulating carbon dioxide (CO2) and other greenhouse gas (GHG) emissions using existing programs of the Clean Air Act (CAA). NMA filed its comment letter along with a detailed legal memorandum analyzing the legal obstacles and ramifications of pursuing the regulatory programs outlined in the ANPR. Both documents may be accessed through the links below.

EPA solicited public comment on how the agency should respond to the U.S. Supreme Court's decision in Massachusetts v. EPA (2007). In that case, the Court ruled that the CAA authorizes regulation of carbon dioxide and other GHG emissions because they meet the definition of "air pollutant" under the Act. The ANPR analyzes the various CAA programs that EPA believes may be utilized to regulate GHGs.

Summary of NMA's Comments

Any attempt by EPA to regulate GHG emissions under the existing CAA will have significant impacts upon the entire U.S. economy, and particularly deleterious effects on every aspect of the mining industry. NMA explained in its comments that using the CAA is not a sustainable solution — environmentally, economically or politically — for addressing climate change concerns. The comments strongly urge EPA to defer further action on CAA regulation until Congress has an opportunity to act.

NMA's comments present a comprehensive analysis of the reasons why the CAA in its present form is fundamentally the wrong way to regulate GHG emissions. NMA believes that the statutory requirements of the CAA will trigger the following regulatory programs for a very large number of previously unregulated sources of CO2 emissions: National Ambient Air Quality Standards (NAAQS); New Source Performance Standards (NSPS); Prevention of Significant Deterioration (PSD); and Title V. Triggering any or all of these programs threatens to severely impede American economic growth.

Additionally, NMA urged EPA to fully consider the economic consequences of regulation, even if the above-mentioned CAA programs are not triggered. The ANPR does not devote adequate attention to the prospects that GHG regulation under the CAA will: 1) impede the nation's energy independence and security goals; 2) damage the reliability of the electric grid; 3) result in leakage of jobs overseas; and 4) create duplicative and wasteful regulation.

Furthermore, NMA expressed its belief that any meaningful effort to achieve long-term, sustainable reductions in GHG emissions will depend on the development and deployment of new energy technologies, including advanced clean coal technologies and carbon capture and storage (CCS). The CAA does not provide incentives to promote the rapid commercialization of CCS, and proposals for GHG reduction targets and timetables in the ANPR fail to coordinate with the availability of CCS technology.

This Website is intended to serve as a clearinghouse for information relevant to EPA's efforts to potentially regulate GHGs under the CAA. For questions about this ongoing rulemaking please contact Ben Brandes, Director of Air Quality, at bbrandes@nma.org.

THE ANPR

OTHER INFORMATION ON THE ANPR