On October 3, EPA released a revised set of rules regarding the permitting of greenhouse gases (GHGs) in response to earlier court decisions invalidating portions of the rule, most notably in Utility Air Regulatory Group (UARG) v. EPA, decided in June 2014 by the U.S. Supreme Court.
The portion of the rule invalidated by the court was known as the “tailoring rule.” The tailoring rule established levels of pollutant impact for greenhouse gases different from those set in the Clean Air Act. Greenhouse gas emitters above those levels would have been required to use advanced technology, known as Best Available Control Technology, to limit greenhouse gas emissions when undergoing Prevention of Significant Deterioration review. PSD review is required for new major sources of air emissions or major modifications to existing sources.
The court allowed the EPA to require Best Available Control Technology for greenhouse gases only when PSD review was required for other non-GHG pollutants, but concluded that the EPA may not require PSD review of smaller sources of greenhouse gases not otherwise subject to PSD review.
The EPA’s revised rule reflects the decision in UARG v. EPA. The rule provides that neither the PSD nor Title V rules require a source to obtain a permit solely because the source emits or has the potential to emit GHGs above the applicable thresholds. In the rule, the EPA also proposes a significant emissions rate for GHGs under the PSD program that would establish an appropriate threshold level below which BACT would not be required for a source's GHG emissions.
The EPA has opened a public comment period on the revised rule until December 2, 2016. The rule will undergo any changes as the result of the public comments and be finalized thereafter.
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Terry Cole has practiced environmental law, governmental administrative law and litigation for over 25 years in private practice. Before moving to private practice, Terry was the assistant secretary of the Florida Department of Environmental Regulation, as well as its general counsel.
Greg Munson is the former general counsel and deputy secretary for water policy at the Florida Department of Environmental Protection. Since 2013, he has been a shareholder practicing environmental law and government affairs at Gunster, working in Tallahassee, Florida.
