How EPA Could Implement a Greenhouse Gas NAAQS

Fordham Environmental Law Review, Dec 2011

By Rich Raiders, Published on 01/01/11

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How EPA Could Implement a Greenhouse Gas NAAQS

Could Implement a Greenhouse Gas NAAQS Rich Raiders 0 0 Temple University Beasley School of Law Copyright c 2010 by the authors. Fordham Environmental Law Review is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/elr - 2010 Article 5 How EPA Rich Raiders* INTRODUCTION Massachusetts v. EPA' started a wide-ranging debate concerning how, if at all, the U.S. Environmental Protection Agency ("EPA") should regulate greenhouse gases ("GHG"). Most observers agree that Congressional efforts to enact comprehensive GHG legislation have stalled.2 Several climate-related mass tort actions claiming that climate change has increased the severity of extreme weather events and has caused incremental shoreline damage will not likely result in a comprehensive GHG regulatory system. 3 The EPA has finalized a number of GHG regulations, many of which are or have been the subject of litigation. Now that the Supreme Court has opened the door for the EPA to use the Clean Air Act5 ("CAA") to regulate GHGs, 6 the nation FORDHAMENVIRONAENTAL LAW REVIEW [VVOL. XXII continues to wrestle with the pros and cons of CAA GHG regulation. Many commentators write that GHG regulation under the existing CAA is inappropriate, infeasible, or unjustified.7 Some have called on Congress to intervene so that the CAA does not regulate climate change.8 Others argue that controlling domestic GHG emissions is futile in the face of increasing international emissions, especially from China.9 Congress has wrestled with bills restricting the EPA's ability to regulate GHGs, but has not passed a bill thus far.' 0 Others write that GHG regulation under the existing CAA is necessary" or at least justified. 2 Absent additional Congressional input, EPA now must decide how to apply its various CAA programs to climate change. EPA has finalized automobile GHG regulations' 3 and has proposed heavy duty truck GHG regulations.14 Large stationary source facility GHG construction permitting began in early 201 1.'5 This article explores the steps the EPA may take if it decides to regulate GHGs under current CAA regulatory programs. Part I introduces the various CAA authorities available today. Part II reviews if the EPA can or must set GHG National Ambient Air Quality Standards ("NAAQS"), and if it were to set GHG NAAQS, how it would proceed. Part III discusses how the EPA could use GHG NAAQS, combined with other existing CAA programs, to manage GHG emissions without Congressional intervention. While future judicial or Congressional action could substantially change EPA's authority or discretion, this article explores how the EPA could regulate GHGs under the CAA as of the end of 2010. I. THE CLEAN AIR ACT Congress defined "air pollutant" as "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air."l6 Through several amendments CooperativeFederalismFramework is Useful for Addressing Global Warming, 50 Aluz. L. REV. 799, 800 (2008); Robert B. McKinstry, Jr. et al., The New Climate World: Achieving Economic Efficiency in a FederalSystem for Greenhouse Gas Control Through State Planning Combined With FederalPrograms, 34 N.C. J. INT'L. L. & COM. REG. 767, 768-89 ( 2009 ); Eric Schwartz, Carbon Dioxide and The Clean Air Act, 4 CARDOZO PuB. L. POL'Y & ETHICS J. 779, 817 (2006). 13. See Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25,324 (May 7, 2010). 14. See Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles, 75 Fed. Reg. 74,152 (proposed Nov. 30, 2010). 15. See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514, 31,520 (Jun. 3, 2010). 16. 42 U.S.C. § 760 2 (g) (1996). Recognizing that some emissions react in the atmosphere to create other substances that could become a concern, Congress allows EPA to regulate emissions that become precursors for other air pollutants. Id. between 1955 and 1990,17 the CAA and its predecessors has evolved into a complex and comprehensive regulatory structure impacting a "wide variety" of stationary and mobile source emissions.' 8 These programs are often complementary, but occasionally overlap.19 The EPA may utilize a variety of pollutant specific ambient air quality standards, industrial facility emissions regulations, car and truck emissions regulations, and emissions trading programs to address the challenge of regulating GHGs under the existing CAA. A. NationalAmbient Air QualityStandards Responding to the perceived failure of the 1967 CAA to manage air pollution,20 Congress established the NAAQS program in the 1970 CAA.21 NAAQS regulates air pollutants that "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare"22 and that "result[] from numerous or diverse mobile or stationary sources." 23 Primary human health 24 and secondary welfare25 NAAQS limit the amount or concentration of a pollutant present in the ambient air, without imposing emissions limits on individual e-missions sources. 26 Other EPA and state regulatory programs limit individual emissions sources that contribute to the overall atmospheric concentration of each criteria pollutant.27 The EPA sets NAAQS at levels no more and no less stringent than welfare.2 8 necessary to protect human health and Because the criteria pollutants must be common and widely emitted,29 the EPA currently only regulates six: sulfur oxides as sulfur dioxide ("SO2"),30 particulate matter ("PM"), 3 1 carbon monoxide ("CO"),32 ozone,33 nitrogen oxides ("NOx"), 34 and lead ("Pb")3. 5 Precursors are emissions that, once emitted to the atmosphere, create other pollutants. 36 For example, NOx, volatile organic compounds ("VOC"),37 and CO react in the atmosphere to form ozone.38 Five of the NAAQS originated from the implementation of the 1970 CAA. 39 The EPA promulgated the sixth criteria pollutant, lead, in response to litigation.40 B. Attainment Designations The EPA and the states determine NAAQS compliance locally.41 The country is divided into several air quality control regions ("AQCR"), often described as regional or metropolitan airsheds, where states monitor compliance with air quality standards.42 Attainment designations are set for all or part of each AQCR.43 C. State ImplementationPlans Within three years of the EPA setting NAAQS, states submit a State Implementation Plan ("SIP") that shows, as required in CAA Section 110, how the state will attain each NAAQS, maintain attainment given anticipated economic growth, and enforce provisions designed to attain or maintain each NAAQS. 44 States must also update SIPs to account for changes in local circumstances or NAAQS changes, 45 and address how areas not attaining a NAAQS will come into attainment. 46 1. Plan Development SIPs include appropriate state-developed emissions limitations, applied to individual emitting facilities, to meet NAAQS. 47 These limitations may include "marketable permits[ ] and auctions of emissions rights" that reduce overall emissions of a NAAQS pollutant. 4 8 States must evaluate new and modified large industrial facilities to determine that emissions increases from new projects do not cause or aggravate a NAAQS attainment problem. 4 9 States must also implement ambient air monitoring programs to measure air quality and show that the state meets each NAAQS.so States typically rely on a number of federal programs to help attain or maintain attainment.5 1 For instance, the EPA manages the New Source Performance Standard ("NSPS") program, which regulates emissions from a variety of new or reconstructed emissions sourceS.52 Mobile source regulations address emissions from a variety of vehicles, including passenger cars and trucks.53 EPA allows states to incorporate expected emissions reductions from these, and other, programs as part of a SIP demonstration.54 2. Failure to Attain A NAAQS States containing nonattainment areas must implement additional SIP measures designed so that each state can attain a NAAQS in a timely manner. Typically, a state has five years to demonstrate that a nonattainment area has attained a primary NAAQS standard,56 extendable to ten years in some situations.5 7 Two additional one year extensions are also possible.5 8 However, the 1990 CAA Amendments extended the attainment schedule for some pollutants to as far as twenty years in certain cases. 59 States must demonstrate attainment with secondary standards as soon as practicable, with no fixed deadline.60 3. Interstate and International Considerations Air pollution does not recognize political boundaries. Section 126 of the CAA allows "[a]ny State of political subdivision [to] petition the Administrator for a finding that any major source or group of stationary sources emits or would emit any air pollutant" that would cause another state to not attain a NAAQS.61 The EPA then determines if emissions controls on one or more sources within an upwind state must facilitate downwind NAAQS compliance. 62 cAA Section 115 includes provisions governing international air pollution. EPA may require domestic emissions sources to eliminate emissions that "may reasonably be anticipated to endanger public health or welfare in a foreign country" or upon request of the Secretary of State. 63 Rarely utilized Section 179B authorizes the EPA to address international air pollution causing or contributing to nonattainment problems.64 This provision requires the EPA Administrator to refrain from sanctioning a state for long term nonattainment where the state can demonstrate that its SIP would be adequate to attain the NAAQS "but for emissions emanating from outside the United States." 65 D. New Source Review The CAA requires states to impose specific permitting requirements on new large industrial sources of air pollution and existing large sources of air pollution that undergo significant modifications.66 New Source Review ("NSR") is the generic name for the EPA large source construction permitting program applied in 2011] both attainment and nonattainment areas.67 NSR requires new or "modified" 68 "major69 stationary sources of any regulated air pollutants to obtain special permits before beginning construction. 70 The CAA and EPA regulations specifically define several key NSR concepts. Stationary sources are operations, facilities, or locations that emit air pollutants regulated under the CAA. 7' Major emitting facilities sources in attainment areas are those stationary sources with the specified minimum potential to emit thresholds. 72 Regulated air pollutants include any pollutant regulated under any part of the CAA, including the six criteria pollutants, and several others. 73 Sources increasing emissions by specified amounts must obtain NSR permits or state permits for "minor" projects.7 4 E. Acid Rain and Emissions TradingPrograms In the 1990 Amendments to the CAA, Congress established the acid rain trading system, where electric generating unit ("EGU") operators and other large industrial sulfur dioxide emitters would be allocated emissions allowances for trading.7 5 The CAA set the total number of allowances available for use each year, and allowed facilities to emit based on their allocated allowances plus purchased allowances beyond the unit allocation. 76 Unused excess allowances for a given year may be sold to others, providing economic incentives for those capable of cost-effective emissions to reduce emissions. 77 By allowing affected sources flexibility to decide to reduce emissions to trade allowances, the acid rain program reduced regulated emissions quicker and for less cost than a comparable command and control system, requiring all sources to reduce emissions without regard to cost, would have.7 8 F. New Source PerformanceStandards The NSPS program has regulated emissions from new or reconstructed large industrial facilities since 1970.79 The EPA develops nationally uniform NSPS regulations for a category of stationary sources8 0 "if in his8 ' judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." 82 The EPA may regulate criteria pollutants and other pollutants regulated under any part of the CAA in the NSPS program. NSPS standards require best demonstrated 2011] technology ("BDT") emissions controls for each source category.84 The CAA also authorizes the EPA to issue "emissions guidelines" where states regulate emissions of existing sources listed in NSPS source categories.8 5 The CAA authorizes the EPA to regulate existing sources where states have declined to regulate, 86 but the EPA has rarely used this authority.87 The EPA is required to reevaluate NSPS standards, and update as necessary, every eight years.8 8 G. Maximum Achievable Control Technology program. Technology based maximum achievable control technology ("MACT") standards regulate hazardous air pollutant ("HAP")89 emissions from specified source categories. 90 Because the MACT major source threshold is ten tons per year ("TPY") of each listed HAP and twenty-five TPY of total HAP, evaluated on a facility-wide potential to emit basis,91 Congress excluded HAPs from the NAAQS 92 H. Mobile Sources CAA Title II regulates mobile sources, including cars and trucks, airplanes, and offroad engines in motorcycles and all-terrain vehicles. 93 The EPA can regulate mobile sources under several provisions, most importantly CAA Section 202's 94 new motor vehicle engine emissions standards and CAA Section 211 's95 fuel and fuel additives standards. The EPA regulates mobile sources under Section 202 by finding that "the emission of any air pollutant from any class or classes of new motor vehicles or other new motor vehicle engines. . . cause[s], or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 96 Mobile source regulation includes criteria pollutant emissions standards for light duty vehicles (passenger cars) and trucks. 9 7 The EPA may revise mobile source standards "as needed to protect public health or welfare, taking costs, energy, and safety into account." 98 In a process known as "transportation conformity," EPA works with the states to incorporate changing mobile source emissions standards into state SIPs. 99 EPA regulates motor vehicle fuels and fuel additives under the very similar Section 211 when "if in the judgment of the Administrator any emission product of such fuel or fuel additive causes, or contributes, to air pollution which may reasonably be 93. Id. §§ 7521-7590. 94. Id. § 7521. 95. Id. § 7545. 96. Id. § 7521(a)( 1 ). Section 211 includes a similar regulatory trigger for emissions related to fuel additives. Id. § 7545(c)( 1 ). 97. Id. § 7521(g). Congress set the initial mobile source VOC, CO, and NOx standards. Id. § 752 1(g)( 1 ). 98. Id. § 7521(b)( 1 )(C). EPA may only reduce the emissions standards. 99. 40 C.F.R. §§ 93.100-60 ( 2010 ). The transportation conformity process reflects the balance between vehicle miles traveled within a AQCR and the expected emissions rates, given the current state of EPA mobile source regulations. States update their transportation conformity demonstrations during the SIP update process, incorporating updated mobile source emissions standards. FED. HIGHWAY TRANsP. ADMIN., TRANSPORTATION CONFORMITY: A BASIC GUIDE FOR STATE & LOCAL OFFICIALS 3-4 ( 2010 ), availableat http://www.fhwa.dot.gov/environment/ air quality/conformity/basicguide201 0.pdf. anticipated to endanger the public health or welfare."100 As discussed below, EPA has used this authority once before. I. Ozone DepletingSubstances CAA Title VI regulates ozone depleting substances ("ODS"),' 0 such as chloroflorocarbons ("CFC") and hydrochlorofluorocarbons ("HCFC"). ODSs, including common refrigerants and several industrial chemicals, deplete upper atmosphere ozone when emitted, causing the "ozone hole" over the Southern Hemisphere observed in the second half of the twentieth century.102 In implementing the Montreal Protocol to repair the ozone hole, 0 3 Congress directed the EPA to phase out CFCs' 04 and HCFCs 0 5 over time, and identify safe replacement products for ODSs. 0 6 Congress also established an ODS trading system,1 0 7 weighing ODS usage on an ozone depleting potential ("ODP") basis. 08 Trading was allowed between companies in Class 1109 substances, and is allowed in Class 11110 substances, subject to a declining cap phased in over several decades.' II. APPLYING GHGs TO THE NAAQS/SIP PROCESS This section explores how the EPA might regulate GHGs as air pollutants under the existing CAA.11 2 Some CAA programs are mandatory for GHGs. For example, this Article suggests that the EPA has already satisfied the statutory conditions to develop a GHG NAAQS.1 3 EPA has significant discretion in implementing other CAA programs,1 4 the flexibility to incorporate several market based mechanisms within its existing regulatory authority;"15 and the NAAQS program casts a long shadow over other CAA programs, providing some regulatory opportunities116 and precluding others." 7 No GHG regulatory discussion would be complete without, after reviewing the current status of GHG regulation, discussing potential NAAQS applicability and implementation issues. A. Steps Already Taken To Regulate GHGs Under the CAA The EPA has already begun to regulate GHGs, following an eight year GHG petition process resulting in the landmark Massachusetts v. EPA Supreme Court decision. In response to Massachusetts the EPA finalized several regulations and is in the process of proposing several others. 119 2011] 1. Massachusetts v. EPA In 1999, a group of private organizations petitioned the EPA to regulate GHGs under Section 202, claiming that GHG emissions from new mobile sources caused or contributed to air pollution that endangered the public health or welfare.120 These groups petitioned the EPA partially in response to a 1998 opinion by then EPA General Counsel Jonathan Cannon that EPA could regulate GHGs under the CAA. 12 1 The "Cannon Memo" noted, in theoretical terms, that GHGs could potentially be subject to regulations under one or more of the mobile and stationary source programs described above.122 In early 2001, the new EPA Administrator requested public comment on the GHG regulation petition,123 and rejected the petition almost two years later. 124 The rejection claimed that the prior EPA General Counsel's memorandum was misguided, and the EPA did not have the authority to regulate GHGs under the Act.125 The EPA noted that "Congress was well aware of the global climate change issue when it last comprehensively amended the [CAA] in 1990, yet it declined to adopt a2 roposed amendment establishing binding emissions limitations."' The EPA approached the GHG regulatory issue as a political question with its own "political history" outside the CAA. The EPA further explained that only by improving fuel economy could it impact GHG emissions from new mobile sources.128 The petitioners, along with several state and local governments, appealed the EPA's petition rejection, but the D.C. Circuit Court of Appeals affirmed.129 The petitioners appealed to the Supreme Court, which held that political considerations do not trump plain statutory language that requires the EPA to consider if emissions may endanger public health or welfare.130 The court also rejected the EPA's assertion that mileage standards set by the Department of Transportation do not conflict with the EPA's independent health and welfare obligations.' 3 ' Rather than instructing the EPA to find GHG endangerment under Section 202, the Court instructed the agency to reconsider the petition and provide a statutory basis to either find endangerment or reject the petition.132 2. The EPA Response to Massachusetts In response to the Court's decision, the EPA published an advance notice of proposed rulemaking ("ANPR") to again solicit comments concerning regulating GHGs under the CAA, including the still pending 1999 Section 202 endangerment petition. 3 3 Just as the ANPR comment period closed, EPA Administrator Stephen Johnson issued the "PSD Interpretation Memo," noting that the PSD does not apply to a newly regulated air pollutant, such as GHGs, until the EPA 129. Mass. v. Envtl. Prot. Agency, 415 F.3d 50 (D.C. Cir. 2005), rev'd, 549 U.S. 497 (2007). 130. See Massachusetts,549 U.S. at 529-30. EPA analogized the GHG rejection to Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), where Congress explicitly restricted the Food and Drug Administration from regulating tobacco products. Because FDA could not regulate tobacco due to a Congressional mandate to not regulate, EPA could not regulate GHGs because Congress did not mandate climate change regulation. The court rejected the analogy because Congress never directly addressed the GHG question in legislation that became law. 131. See Massachusetts, 549 U.S. at 531-32. The Court observed the overlap between EPA and DOT, and noted that the two agencies could likely harmonize their roles. As discussed below, EPA and DOT jointly issued the first GHG air emissions regulation/mileage standard regulation in 2010. Control of Air Pollution from Mobile Sources, 40 C.F.R. § 85 ( 2010 ), 40 C.F.R. § 86 ( 2010 ), 40 C.F.R. § 600 ( 2010 ), 49 C.F.R. § 531 ( 2010 ), 49 C.F.R. § 533 ( 2010 ), 49 C.F.R. § 536 ( 2010 ), 49 C.F.R. § 537 ( 2010 ), 49 C.F.R. § 538 ( 2010 ). 132. See Massachusetts,549 U.S. at 534-35. 133. See Regulating Greenhouse Gases Under The Clean Air Act, 73 Fed. Reg. 44,354, 44,366-67 (Jul. 30, 2008) (to be codified at 40 C.F.R. ch. I). regulates that newly regulated air pollutant under one of the stationary or mobile source standards described above.134 The EPA must regulate a new pollutant under NAAQS, NSPS, MACT, or the mobile source program before PSD applies to that new air pollutant.135 The EPA began finalizing several GHG related rules and notices in late 2009. In October 2009, the EPA finalized the first comprehensive climate change reporting rule, requiring thousands of GHG emitting facilities to begin reporting GHG emissions to the EPA starting in calendar year 2010.136 Next, in December 2009, the EPA found that GHGs emitted from new mobile sources endanger public health and public welfare under Section 202.137 In 2010, the EPA reaffirmed the Johnson memo, noting that PSD will not begin until the EPA regulates GHGs under a stationary or 134. See Memorandum from Stephen L. Johnson, supranote 83 (EPA wrote this memo to clarify when PSD might apply for newly regulated air pollutants); see also Clean Air Act (CAA) Pub. L. 101-549, § 821, 104 Stat. 2699 (uncodified but for a note in section 412 of the Clean Air Act (CAA) (42 U.S.C. § 765 1k (2006)), requires electric generating units ("EGU") to monitor and report CO 2 emissions data. The EPA Environmental Appeals Board had recently heard the Deseret PSD permit appeal. See In re Deseret Power Elec. Coop., PSD Appeal No. 07-03 (Envtl. Appeals Bd. Nov. 13, 2008), available at http://yosemite.epa.gov/oa/ EAB WebDocket.nsf/PSD+Permit+Appeals+%28CAA%29/C8C5985967D8096 E8525750000681 1A7/$File/Remand...39.pdf. The EAB remanded to EPA Region VIII the decision to require, or not, PSD for a new electric generating unit. EPA was also concerned that, once GHG endangerment is found, that PSD would apply by operation of law immediately. The memo concludes that PSD would not apply until EPA actually began regulating GHGs. Reporting GHGs alone does not trigger PSD under this memo. Id. 135. Johnson, supranote 83, at 6-7. EPA could also theoretically regulate a new pollutant under other programs, such as the ozone depleting substances program, to trigger PSD. 136. See Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56,260, 56,266 (Oct. 30, 2009) (to be codified at 40 C.F.R. pts, 86, 87, 89, 90, 94, 98, 1033,1039,1042,1045,1048,1051, 1054,1065). This reporting system incorporates the prior section 821 EGU reporting system. Most facilities began reporting in March 2011 for the 2010 reporting year. 137. See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009) (to be codified at 40 C.F.R. ch. I). mobile source regulation. 138 The EPA then published the first GHG emissions standards, regulating GHG emissions from model year 2012 new light duty cars and trucks.' 39 The new mobile source GHG rule triggered PSD as soon as the GHG regulations took effect on January 2, 2011.140 Next, the EPA finalized the GHG "Tailoring Rule,"l41 which used both the absurd results doctrinel42 and administrative necessity doctrine from Alabama Power v. Costlel43 to override the 100 and 250 ton per year statutory PSD thresholds for GHGs.144 The EPA identified the statutory PSD thresholds as an undue burden on smaller facilities that would not otherwise be subject to PSD except for GHG emissions, usually from fuel combustion. 145 The EPA then applied the three part Alabama Power test to evaluate the appropriateness of invoking the administrative necessity doctrine.146 First, the EPA streamlined the administrative burden as much as possible within statutory constraints.1 47 Second, the EPA determined that, after streamlining, that the administrative burden of the new regulation causes an undue burden on the agency. 14 Third, once the EPA determined that it must adjust the statutory requirements to become administrable, it attempted to preserve Congressional intent to the maximum extent possible.149 The EPA found that requiring small sources, such as office buildings, restaurants, and large homes, not otherwise subject to PSD permitting to become major sources of air pollutants was an undue burden to both the owners of these sources and to the agency.1 50 The EPA also found that revising the GHG PSD thresholds, and phasing in the GHG PSD rules over several years' 5 ' maintained Congressional intent as much as possible.152 Finding administrative necessity, the EPA then set the PSD threshold at 100,000 TPY CO 2 equivalent ("CO 2e") for new major sources, and the significance threshold of 75,000 TPY CO 2e for modified sources. 3 Without the Tailoring Rule, the statutory PSD system, with its 100 and 250 TPY major source thresholds, took effect on January 2, 2011.'4 The EPA has announced several additional GHG rulemaking proposals. In November 2010, EPA the National Highway Traffic Safety Administration ("NHTSA") proposed GHG standards for office complexes to obtain PSD permits for GHGs to be an absurd result, requiring the agency to invoke administrative necessity. 146. See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514, 31,543-44 (Jun. 3, 2010) (to be codified at 40 C.F.R. pts. 51, 52, 70, 71). 147. See id. at 31,544. 148. See id. 149. See id. 150. See id. at 31,516. 151. See id. The Tailoring Rule's details are beyond the scope of this paper. 152. See id. at 31,517. 153. See id. at 31,567. The PSD thresholds will effectively keep sources that would not invoke PSD in the example in supranote 145, from invoking GHG PSD before invoking PSD for NOx or S02. 154. See id. at 31,544. 2011] earth, would reduce ambient concentrations to the level of the NAAQS. In this way, the impossible to meet ambient NAAQS standard could be translated into a more workable emissions budget for each state. Existing statutory authority and precedent would allow the EPA to translate the total emissions inventory of GHGs into an emissions budget for each state, providing each state the opportunity to design programs to meet the emission budget, and evolve the budget over time to reach a longer term goal. Such a program could be modeled after the successful EPA NOx SIP Call budgeting program. The EPA issues a SIP Call "[w]henever the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant [NAAQS]."42 In a SIP Call notice, "[t]he Administrator shall require the State to revise the [SIP] as necessary to correct ... inadequacies" preventing the state from attaining a NAAQS. 4 29 States submit amended SIPs within a reasonable time, not more than eighteen months.430 In implementing the 1992 ozone NAAQS standards, the EPA was faced with the challenge of reducing NOx emissions from most of the states east of the Mississippi River. 431 Because of the nature of fuel combustion emissions, weather patterns, and close geographical proximity, NOx emissions from downwind states interfered with regional ozone attainment.432 As would be true for greenhouse gases, no single state was able to address its own, or its neighbors, ozone attainment without cooperation from upwind and downwind states. 433 In response to this dilemma, the EPA issued the "NOx SIP Call"434 in 1998 to address ongoing ozone transport problems interfering with ozone NAAQS attainment throughout the eastern United States.435 EGUs and large industrial combustion sources, many of which were regulated under the acid rain program, were required to trade NOx emissions within state-wide budgets.436 The EPA conducted a computer modeling study that correlated NOx emissions from large industrial facilities in the covered states to ambient ozone levels throughout the covered region. 43 7 Using this study, the EPA evaluated what NOx emissions reductions would be needed for these areas, mostly large population centers along the Atlantic seaboard and in the Great Lakes region, to attain the ozone NAAQS.438 It then calculated the cost to achieve these emissions reductions, and determined that highly cost effective controls would achieve adequate emissions reductions from within the twenty-two states to allow downwind states to achieve the ozone NAAQS and comply with Section 110 requirements. 4 39 The EPA converted these maximum emissions levels determined in the modeling project into state NOx emissions budgets. 44 Each participating state submitted a SIP document describing how the state would manage emissions within the budget. 44 1 In exchange for complying with the state specific budget, each participating state was deemed to have not "contribute[d] significantly to nonattainment in, or interfere[d] with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard." 442 Participating facilities decreased NOx emissions by sixty-two percent between 2000-2008 and seventy-five percent between 1990-2008.443 2011] Similarly, the EPA could make a finding that states had met their GHG budgets were not "contributing sinificantly" to nonattainment with the GHG NAAQS in other states. This interstate NO, trading program was legally justified as a component of the SIP attainment demonstrations in each of the twenty-two participating states.445 One judicial review of the OTC NO,, Budget Program left the base program in place, vacating certain technical program details.446 The EPA may implement trading programs within the SIP attainment demonstration process. 44 7 Similarly, for GHG purposes, the EPA could find that states that had met their GHG budgets were not "contributing significantly" to nonattainment with a GHG NAAQS in other states.4 48 The EPA could, once it determined that a state had met its GHG emissions budget, use its Section 179B authority to find that, but for international emissions, the state would attain the NAAQS. 449 The EPA may make such a finding if: the submitting State establishes to the satisfaction of the Administrator that the implementation plan of such state would be adequate to attain and maintain the relevant national ambient air quality standards by the attainment date supecified under the applicable provision of this chapter, or in a regulation promulgated under such provision, but for emissions emanating from outside of the United States.450 Such a finding would allow the EPA and the states to develop SIPs that restrain United States based emissions, recognize international emissions, and meet SIP obligations. One state has attempted to invoke Section 179B before. 45 1 California's Imperial Valley, a region bordering Mexico east of San Diego, was declared a moderate nonattainment area under the 1987 PM NAAQS.45 2 In 2001, California redesignated the Imperial Valley as an attainment area for the PM NAAQS. 453 The redesignation request, which the EPA published as a direct final NAAQS redesignation in the Federal Register, reasoned that, but for international particulate emissions, the Imperial Valley would have attained the NAAQS standard.454 An environmental organization challenged the redesignation because domestic emissions contributed to the Imperial Valley PM attainment issues. 455 The Ninth Circuit Court of Appeals held that a state attempting to use Section 179B to demonstrate NAAQS attainment must develop adequate scientific evidence to show that international emissions caused the failure to attain the NAAQS.456 Here the court held that California did not present adequate evidence that international emissions caused the ongoing nonattainment.457 This proposal would place less pressure on the nonattainment standards process described above. Such a system would provide the states and the EPA with more flexibility in setting GHG SIPs.4 58 States meeting these budgets would, per Section 179B, be deemed in attainment with a GHG NAAQS. "[I]f a state could comply 'but for 2011] emissions eminating from outside the United States,' then EPA can approve the jurisdiction's regulatory plan and avoid the sanctions." 459 This finding would not be necessary if the other major emitting countries around the world would enforce appropriate emissions reductions to reach a NAAQS level within the United States. However, because of the complexities involved with international negotiations, emission reduction programs outside the United States are beyond the scope of this paper. 2. Emissions Trading Many authors have argued that economy-wide GHG trading would most efficiently and cost-effectively reduce GHG emissions.460 The question arises whether such a trading program could be made part of EPA's NAAQS/SIP regulatory scheme. A properly designed emission trading program should minimize compliance cost by encouraging cost-effective emissions reductions, regardless of the regulatory status of the source of the emissions.461 As additional emissions reductions are required to meet a declining emissions cap, the cost-effective emissions reduction threshold adjusts to provide a market signal for additional emission reductions from those in the best financial position to reduce emissions. 462 As described above, trading exists in the existing CAA, in the nonattainment NSR permitting program, Acid Rain, NOx SIP Call, and the HCFC program. 463 These trading programs include a reasonable number of participants, from dozens in HCFC trading to a few thousand in the NOx SIP Call and Acid Rain programs.464 These programs have been shown effective and within EPA's management capabilities.465 However, a trading system can only properly function with members on approximately equal footing, where industrial users exist in one market removed from smaller, less sophisticated actors like homeowners and automobile drivers. GHGs are emitted from every corner of modern society, including electricity generation, home heating, transportation, landfills, and many other daily activities. 466 GHG regulation would necessarily impact virtually the entire economy, from the largest industrial facility to the family car to the smallest outdoor barbeque grill. Regulating this variety of sources would require a comprehensive approach. Piecemeal regulation will necessarily miss many emissions sources. To reach this variety of emissions sources, and thereby make a program's coverage as close to economy-wide as possible, many of these authors have proposed economy-wide trading systems that regulates "upstream" emissions.467 An upstream program regulates inputs resulting in emissions, such as fuel supplies powering cars, homes, and industrial facilities.468 Millions of cars and homes emit GHGs from normal operation. 469 Because of the complexities associated with involving millions of individuals in emissions trading, in an upstream system, all trading would occur at the point of fuel supply.470 Assuming that effectively all fuels purchased are consumed for heat or power, upstream trading would capture all fuel combustion related GHG emissions. Upstream regulation would fit the homeowner and automobile sectors, as these GHG emissions are predictably related to fuel usage, and individuals almost always 2011] purchase natural gas, heating oil, and gasoline to bum it for its intended purpose. 4 71 Some problems arise in an upstream system, since not all fuel produced upstream ends up being burned to release GHGs downstream. 472 Many industrial facilities do not burn all of their purchased fuel or fuel-like materials. Several manufacturing processes utilize fuels as raw materials to manufacture other goods.4 73 Emissions, including C0 2 , from fuel combustion can also vary by the size, age, design, and maintenance of each large fuel combustion device.474 Some industrial operations create and emit CO 2 or other GHGs under normal operations, unrelated to fuel use, which would escape upstream fuel usage regulation.475 Industrial facilities typically are better able to determine direct emissions, and therefore should be capable of direct GHG emissions reporting. 4 76 Direct reporting of industrial facility fuel use and combustion, already partially in place in the Part 98 GHG reporting system,477 would help alleviate this issue. Therefore, because upstream activity may not accurately predict industrial GHG emissions, many commentators have proposed a split upstream/downstream hybrid GHG trading system that would regulate industrial emission downstream and transportation and home heating emissions upstream.478 The systems being considered in Congress during 2010 followed the hybrid model. 479 States may, under existing SIP requirements, incorporate the existing Section 110 SIP authority to build "economic incentives such as fees, marketable permits, and auctions of emissions rights" into SIP plans. 480 Some states have accepted this Congressional invitation to create state based trading programs, such as the Texas Commission on Environmental Quality ("TCEQ") Highly Reactive Volatile Organic Compound4 8 1 program and the South Coast Air Quality Management District ("South Coast") RECLAIM trading programs.482 These trading programs complement existing EPA, state, and local programs to achieve cost effective VOC emissions reductions within local ozone nonattainment areas. Just as TCEQ and South Coast have used trading to reduce VOC emissions, states could implement trading systems within their SIPs to reduce GHG emissions. However, these state-based trading programs address localized problems, and have not been extended beyond their local coverage areas in the Houston and Los Angeles metropolitan areas. An effective and efficient GHG trading system should cover the entire country, preferably one either operated by or coordinated through the EPA. State or regional trading systems could effectively manage a subset of GHG emissions within their boundaries, but would likely not provide the variety of trading opportunities a national trading program might. 2011] i. NOx SIP Call As A Model The NOx SIP call could serve as a model for a stationary source GHG trading program, or a framework in which the EPA could incorporate existing GHG trading programs through the SIP process. The EPA used NOx SIP Call trading to allocate limited emissions budgets over the twenty-two state program area to assist the states in attaining the ozone NAAQS. 483 The EPA found that, by participating in the NOx SIP Call, states would not cause or contribute to downwind ozone nonattainment problems. 484 As explained below, each state allocates emissions within its budget to avoid federalism problems concerning how states construct SIPs.485 The EPA could construct a similar system to allocate GHG emissions. First, the EPA and the states would establish a national GHG emissions budget. The EPA would then, as it had in the NOx SIP Call process, convert the emissions into state budgets in a GHG NAAQS implementation rule, and call states to submit SIPs in conformance with the state budgets. The existing SIP system could be adapted to allow for emissions trading, in a manner not significantly different than proposed in the literature, without further Congressional action. Any trading system will need long term planning to provide a stable market for facilities to make rational investment decisions.486 Long term NAAQS planning, with the EPA setting a cap with each five year NAAQS review, would facilitate a predicable system to allow rational decision making. The downstream trading program will not capture many smaller industrial sources or any commercial and residential GHG emissions sources.487 The EPA would need a size cutoff, an emissions level below which the source would not participate in the trading program. The EPA has identified a 25,000 metric TPY ("mTPY") reporting threshold in the Climate Change Reporting Rule, which could be used as a trading threshold. 483. Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for the Purposes of Reducing Regional Transport of Ozone, 63 Fed. Reg. 57,356 (Oct. 27, 1998). 484. Id. at 57,358. 485. Virginia v. Envtl. Prot. Agency, 108 F.3d 1397, 1415 (D.C. Cir. 1997). 486. Stavins, supra note 369, at 299. Carbon taxes or other systems could provide a level of regulatory stability, but do not easily translate into verifiable emissions reductions. Carbon tax details are beyond the scope of this paper. 487. Id.at 311. Some states have implemented regional GHG emissions trading systems. The EPA could develop a trading approach where the EPA coordinates regional trading systems as part of a national trading coordination program. Several states already participate in the Regional Greenhouse Gas Initiative ("RGGI") GHG trading system.488 Affected sources in member states, including EGU's, trade CO2 allowances within a regional market. 489 Like the proposal above, RGGI does not include any upstream sources, smaller downstream sources, or GHGs other than CO 2.4 90 The EPA could allow, or encourage, states to build RGGI type systems into their SIP demonstrations. However, the EPA and RGGI sponsor states would need to coordinate the RGGI caps with the new state GHG emissions budgets to provide the appropriate emissions constraints in the system.49 1 If the RGGI caps were more lenient than the new state emissions budgets, states would need to adjust their RGGI caps to conform to the new budgets or develop alternate emissions reduction strategies in other sectors of the economy. ii. Federalism Concerns The SIP process, by the state submittal and EPA review process, requires cooperation between the state and federal governments. 4 92 The EPA may not, in the first instance, dictate SIP emissions reduction programs to the states.493 "EPA may not, under [S]ection 110, condition approval of a state's implementation plan on the state's adoption of a particular control measure." 494 The EPA may only work with states choosing to 2011] implement certain controls. 495 "The states are responsible in the first instance for meeting the [NAAQS] through state-designed plans that provide for attainment, maintenance, and enforcement of the [NAAQS] in each [AQCR] .496 A voluntary system allowing states to opt into a trading program, modeled after the voluntary NOx SIP Call, and would satisfy the cooperative federalism requirement in Virginia v. EPA.497 States could also propose another method to manage its share of GHG emissions and submit an approvable SIP. If the EPA were to take this approach, it would need to introduce these concepts no later than during the NAAQS SIP implementation process. After promulgating a NAAQS, the EPA develops a regulation describing how each state should customize their SIP process for that NAAQS standard.498 In an implementation rule, the EPA sets forth common ambient air quality monitoring methods, permitting practices, and air quality planning needed to maintain NAAQS compliance and PSD compliance. 499 These implementation rules also become part of any SIP demonstration.oo By including trading proposals in a GHG NAAQS implementation rule, the EPA would provide guidance to the.states forming their GHG SIP plans. b. Implementing a UpstreamEmissions TradingSystem For the TransportationSection The trading system proposed above cannot reach every source. In 2009, the United States direct energy usage breakdown was approximately 40% electricity generation, 29% transportation, 20% industrial, 4% commercial, and 7% residential.501 The downstream trading program described above would capture just over half of energy consumption by including the electricity generation and large 495. Id. 496. Id. at 1410 (citing Natural Res. Def. Council v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995)). 497. Id. 498. 42 U.S.C. § 7471 ( 2010 ). 499. See Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5), 73 Fed. Reg. 28,321 (proposed May 16, 2008) (to be codified at 40 C.F.R. pts. 51 and 52). 500. Id. at 28,322. 501. ENERGY INFO. ADMIN., MAY 2011 MONTHLY ENERGY REvIEw, DOE/EIA0035 3 ( 2011 ), availableat http://www.eia.gov/totalenergy/data/monthly/pdf/ mer.pdf. industrial energy users. Several commentators have suggested capturing emission from the transportation sector in a cap-and-trade program by moving the point of regulation for that segment of the economy upstream. 502 The EPA could do just that using its Section 211 authority to complement the downstream trading program described above with an "upstream" trading program to regulate the amount of motor vehicle fuels introduced into the economy.503 Under Section 211(c): The Administrator may ... control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle, motor vehicle engine, or nonroad engine or nonroad vehicle if in the judgment of the Administrator any emission product of such fuel or fuel additive causes, or contributes, to air pollution which may reasonably be anticipated to endanger the public health or welfare. 504 While this provision does not mandate regulation, it clearly gives the EPA broad authority to use almost any means to regulate motor vehicle fuel to limit emissions endangering human health or welfare if it wants to. The EPA found that GHGs endanger human health or welfare under a very similar Section 202 endangerment provision,505 and could easily use the same information to make a GHG endangerment finding under Section 211. Once the endangerment finding is made, the phrase "control or prohibit" gives the EPA very broad authority to regulate vehicle fuels using almost any regulatory mechanism.506 The EPA could, for example, create an upstream trading program, which would require producers and importers of transportation fuels to obtain a tradable allowance for each unit of fuel they introduce into the United States market. The EPA used this authority once before to implement a trading program, as a mechanism to phase out the use of lead additive in 502. Driesen & Sinden, supranote 468, at 80-81. 503. CHETTIAR & SCHWARTZ, supranote 202, at 77-78. 504. 42 U.S.C. § 7545(c)( 1 ) ( 2010 ). 505. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. § 66,496 (Dec. 15, 2009). 506. Richardson, supra note 12, at 289-90. 2011] gasoline during the 1970S. 507 In the lead trading program, petroleum refiners were allowed to trade lead additive allowances during the control period, so long as the average lead content in gasoline met cap limits across an entire refinery.sos This trading system allowed manufacturers needing more time to reduce, and then eventually eliminate, gasoline lead additives to implement long lead time projects to adapt to lead free gasoline manufacturing. 509 A Section 211 trading program could be used to cap mobile source emissions to complement the downstream trading program for power plants and large industrial sources described above. 510 An upstream trading system should include as many sources of fuel as possible to maximize program coverage.5 1 ' Otherwise, owners could switch from regulated and supply limited fuels to unregulated and freely available fuels.5 12 Using Section 211 authority to regulate the total fuel supply would complement the existing Section 202 GHG regulatory program now regulating GHG emissions from new automobiles. Section 202 standards regulate the mass emission rate of a pollutant from a vehicle mile traveled ("VMT"), and not total emission from any single vehicle in a year or in the lifetime of any single vehicle. 513 Because the EPA has no Section 202 authority to regulate how many miles an individual drives their car, the EPA could not regulate total mobile source GHG emissions from any single car, or all cars and trucks through the entire country, in any year, with a Section 202 program. Accordingly, Section 202 standards would not completely constrain mobile source GHG emissions, and budgeted GHG emissions could grow even as per mile emissions decline over time. Should the EPA be interested in upstream regulation, it could construct an allowance system similar to a proposal recently passing 507. Regulation of Fuel and Fuel Additives, 38 Fed. Reg. 1,258 (proposed Jan. 10, 1973) (to be codified at 40 C.F.R. pt. 80). 508. Reitze, supra note 8, at 26. 509. Id. 510. See discussionsupraPart I.H. 511. Stavins, supranote 369, at 311. 512. Id. 513. Reitze, supra note 8, at 70. States typically regulate motor vehicle emissions from existing vehicles from implementation and maintenance plans required of nonattainment areas. See 42 U.S.C.§ 751 la(a)( 2 )(B) (2006) (vehicle emissions testing in marginal nonattainment areas). the House of Representatives.514 The EPA would then adjust the fuel supply cap over time in response to NAAQS attainment needs. States would participate in the process by including the Section 211 program as part of their SIP submittals, taking credit for emission reductions from all mobile source programs. c. Gaps In a SIP Trading System As described above, the proposed tradinf system would not capture all GHG sources within the economy.s 5 Several existing EPA programs could help fill these gaps by promoting emission reductions and stabilizing emission rates from these activities. i. Residential and Commercial Sources Neither the upstream nor the downstream trading programs described above would reach emissions from home heating units, which comprise seven percent of total United States energy demand.5 16 Section 211, regulating mobile source fuels, cannot reach fuels used in homes, offices, and other buildings.5 17 Additionally, the downstream program proposed above would not reach sources below a certain threshold, perhaps, 25,000 tons/year. 518 Such a program may be achievable as part of the SIP process, where states would be required to include a stationary source fuels budget in their GHG NAAQS SIP submittals using the process described above. States may use their SIP regulatory programs to impose emissions limits on smaller stationary residential and commercial combustion units. 519 However, regulating individual homeowners and businesses 514. PEW CENTER ON GLOBAL CLIMATE CHANGE, supranote 355, at 1. 515. See discussionsupra Part III.A.2.b. 516. ENERGY INFO. ADMIN., ANNUAL ENERGY REvIEw 2009, available at http://www.eia.doe.gov/aer/pdf/pages/sec2_6.pdf. For year 2009, the last year of data available, primary residential energy consumption was 6,606 trillion British Thermal Units ("BTU"), compared with 94, 578 trillion BTU, or seven percent. 517. 42 U.S.C. § 7545(c)( 1 ) (2006). Section 211 regulation is limited to fuels and fuel additives. 518. See e.g., 40 C.F.R. § 98.2(a)(3)(iii) ( 2010 ). In the Climate Change Reporting Rule, EPA used 25,000 tons per year as a reporting cutoff for several source categories. Such a threshold would be consistent with the existing EPA reporting system. 519. 42 U.S.C. § 7410(a)( 2 )(A) (2006). States may limit emissions for all types of units. 2011] would be cumbersome, if not impossible. The EPA could attempt to propose an economy-wide fuel limitation structure for these sources if all states would agree to participate. But as the states are primarily responsible for regulating smaller emissions sources within the SIP system, any state not opting into a common scheme for smaller GHG sources would bring about the collapse of the entire system. A comprehensive emissions management system relies on full participation, and if a larger state were to opt out, the other states may not be able to make up the difference to reach national goals. If even one state did not agree to a residential heating budget process, the EPA would then likely rely on existing authority to limit emissions from these smaller and dispersed sources. This authority, which regulates equipment design but not fuel inputs, would have limited impact on total GHG emissions. ii. New Source Performance Standards Several smaller GHG emissions source categories, such as residential wood stoves, would still not be included in the regulatory scheme described above, except for state SIP provisions. 520 The EPA uses the NSPS program to regulate new sources in specific source categories that other federal programs would not typically reach.521 The EPA could rely on the NSPS program to limit GHG emissions from certain source categories, such as smaller fuel combustion units and landfills, which would not otherwise be included in the trading program outlined above. NSPS standards would help address smaller sources, which states would need to address under their SIP authority, as discussed above. 1. Wood Stoves For example, the EPA currently regulates residential wood stove emissions under a NSPS standard that sets manufacturing design standards for new wood stoves. 522 Most wood stove fuel is harvested locally, either by the stove owner or within local, sometimes 520. Id. 521. See, e.g., 40 C.F.R. 60 Subpart AAA ( 2010 ). For example, the wood stove NSPS regulates an entire industry of mostly residential wood burning appliances. 42 U.S.C. § 7411(b)(1)(A) (2006) allows EPA to list source categories, without regard to the types of pollutants emitted from any specific category. 522. 40 C.F.R. §§ 60.530-539b ( 2010 ). informal,523 markets outside the reach of state or federal regulators. Therefore, upstream regulation of the fuel would not be practical. End-of-pipe regulation of wood stove emissions 52 4 where EPA would require individual owners to measure emission rates from individual wood stoves, would be impossible525 given the number of stoves in service, the wide geographic distribution of these devices, and the small amount of emissions from a properly designed wood stove relative to other emissions sources the EPA regulates in the NSPS program. The EPA compensates for this inability to regulate actual emissions by regulating how wood stoves are built.526 The emissions authorization for each new wood stove is a plate affixed to the side of each wood stove introduced to United States commerce. 527 If the EPA uses NSPS authority for GHGs, it should follow its wood stove NSPS 528 approach for commonly marketed source categories, such as home and commercial heating units, boilers, and backup power generation engines. This approach would allow the EPA to set minimum design standards for common fuel using appliances, reducing GHG emissions to reasonably achievable levels without end user involvement. Because the EPA can only regulate transportation-related upstream activity in a trading system,529 NSPS point of design standards would complement upstream trading by reducing, over time, fuel demand on a per unit basis. These reductions would help reduce total demand, easing end user burdens. 2. Solid Waste Landfills Another significant source of GHG emissions that the economy wide trading system would miss is solid waste landfillS. 53 0 These 523. Q&A About Firewood, WOODHEAT.ORG, http://woodheat.org/qafirewood.html (last visited May 20, 2011). Firewood sources include personal supplies, used pallets, or purchased firewood supplies. 524. 40 C.F.R. § 60.8 ( 2010 ). 525. Id. 526. 40 C.F.R. § 60.533 ( 2010 ). 527. 40 C.F.R. § 60.536(b) ( 2010 ). The Army Corps of Engineers and EPA use a similar approach in the "Nationwide" or General Permit program authorizing common wetlands construction under 33 C.F.R. § 330 ( 2010 ). 528. 40 C.F.R. §§ 60.530-539b ( 2010 ). 529. Stavins, supra note 369, at 312-14. 530. Nordhaus & Danish, supra note 406, at 129-30. These authors envision a trading program with only a few thousand sources. 2011] have been identified as a substantial source of GHG emissions during, and long after, their service lives. 53 1 But most landfills emit less than 25,000 mTPY GHGs, and would likely fall outside any large source trading program. 532 The EPA operates an outreach program encouraging landfill owners and operators to install electricity generation units to consume landfill gas, reducing overall GHG emissions,533 but GHG emissions from landfills remain substantial. Some authors propose capturing these sources in offset programs, where interested parties control emissions from sources outside the regulatory system to obtain credits to emit GHGs from sources within the program. 534 Because many landfills are closed, and closed landfills emit GHGs long after closure, 535 an offset program could provide capital to unfunded or underfunded landfill owners to implement GHG reduction projects. However, the EPA should consider using its existing regulatory authority to manage GHG emissions from new or operating landfills subject to the existing landfill NSPS.536 Using the existing NSPS to control GHGs would provide a design standard for landfill owners and operators to use when implementing GHG reduction projects. The EPA could implement both landfill offsets for closed landfills and landfill NSPS GHG regulations for operating landfills already complying with the landfill NSPS. iii. New Source Review The NSR system, regulating new and modified major sources of criteria pollutants, would continue in force under this proposal.537 CAA Sections 165 and 169 require the EPA to continue to implement 531. John Rather, Tapping Power From Trash, N.Y. TIMES, Sep. 14, 2008, at NJ3. 532. ENVTL. PROT. AGENCY, TECHNICAL SUPPORT DOCUMENT FOR THE LANDFILL SECTOR: PROPOSED RULE FOR MANDATORY REPORTING OF GREENHOUSE GASSES 6-8 ( 2009 ), availableat http://www.epa.gov/climatechange/emissions/ downloads/tsd/TSD LandfillsEPA_02 04 09_2.pdf. 533. Landfill Methane Outreach Program, ENVL. PROT. AGENCY, http://www.epa.gov/lmop/index.html (last visited May 17, 2011). 534. Nordhaus & Danish, supranote 406, at 113-14. 535. Rather, supra note 531. 536. 40 C.F.R. §§ 60.750-759 ( 2010 ). 537. 40 C.F.R. § 52.21 ( 2011 ). the PSD and nonattainment NSR permitting programs for all regulated air pollutants, regardless of the presence or absence of an emissions trading program. 538 As part of any trading implementation program, the EPA should evaluate if a trading program can satisfy the BACT and/or LAER emission control requirements. The EPA should also consider if, under a declining emissions budget scenario, nonattainment emissions offsets would be necessary, or if offsets would be inherently incorporated into the trading program. New sources would be required to obtain allowances under the declining cap to cover new emissions, just like a facility seeking offsets in a nonattainment area must obtain emissions offsets today. 539 iv. Refrigerants GHG emissions from refrigerant leaks would also not be covered in the potential trading system identified above. 54 0 HCFCs, the most common refrigerants in use today, are GHGs and contribute to ozone degradation.54 1 HFCs exhibit a very small, but calculated, ODP.542 Millions of residential, commercial, industrial, and motor vehicles use small refrigeration appliances filled with a few pounds of refrigerant to cool indoor space or car cabins. 543 As HCFC refrigerants are phased out over the next decade due to the Montreal Protocol, HFC refrigerants will replace HCFCs in most refrigeration equipment. 544 Even with the large GWPs of common refrigerants, a typical home unit, charged with three to five pounds of R-134a, one of the HFC refrigerants replacing HCFC refrigerants in many applications,545 would only potentially emit less than five tons of CO 2e if the entire refrigerant charge were lost. 546 No major source regulatory program can possibly reach hundreds of millions of these small appliances in service in almost every home, office, and car. The Title VI upstream HCFC trading program could be used for trading a limited subset of GHGs. The EPA may have sufficient authority today, using its refrigerant replacement authority to partially regulate HFCs used as CFC and HCFC replacements in the refrigeration markets. The EPA has the authority to add to the Class I ODP list any compound "that the Administrator finds is known or may reasonably be anticipated to cause or contribute to harmful effects on the stratospheric ozone layer." 5 47 As CAA Title VI phases out the existing Class I and Class II compounds, compounds with lesser ODP values may become more important in managing the stratospheric ozone problem. Listing HFCs as Class II compounds, even with the expected very small ODP values, would allow the EPA to apply Class II authority, including the statutory trading system, to HFCs. This upstream component would allow the EPA to manage GHG emissions from the refrigeration and air conditioning market segments without unduly burdening end users. d. TradingProgramImplementation By using the SIP stationary source and Section 211 fuels cap-andtrade approach, the EPA could essentially implement much of what Congress came close to enacting, but did not enact, in 2010.548 The substantial difference between an EPA managed program and a Congressional program is that the EPA would be required, because of the five year NAAQS review, to periodically revisit and tailor its SIP based programs to address contemporary and emerging public health 545. James M. Calm & Pitor A. Domanski, R-22 Replacement Status, 46 ASHRAE J. 29 (2004), availableat http://www.fire.nist.gov/bfrlpubs/ build04/PDF/b04049.pdf. 546. Global Warming Potentials of ODS Substitutes, ENVTL. PROT. AGENCY, http://www.epa.gov/ozone/geninfo/gwps.html (last visited Apr. 30, 2011). R-134a has a GWP of 1,300. A typical five pound charge in a home air conditioner has a GWP of 6,500 pounds CO2e, or three tons. 547. 42 U.S.C. § 7671a(b) (2006). 548. Hulse & Herszenhorn, supra note 10. and welfare threats.549 The 2009 cap-and-trade bills in Congress would have set statutory emissions caps for the next forty years.5 For existing criteria pollutants, Congress provided detailed guidance to the EPA for addressing NAAQS attainment.5 5 1 Because no such detailed legislative guidance exists concerning implementing any GHG NAAQS, the EPA would act, absent further Congressional instruction, at its own discretion and under substantial judicial oversight. The EPA would need to exercise caution in choosing how it regulates GHGs within it is other programs. If properly crafted, the EPA program could provide adequate flexibility to balance out the expected economic challenges that any transformative program must include.55 2 The EPA could evaluate the ongoing technology forcing inherent in CAA regulations, and periodically adjust the regulatory programs to the available technology, emission reductions from other regulations, and international factors discussed below. Congress can always assert its authority if the EPA overreaches or doesn't achieve adequate emissions reductions over time.5 53 While this authority uses the inherent SIP program flexibility, it can only work if the EPA utilizes its authority to exclude international contributions to GHG nonattainment. Otherwise, the nonattainment sanctions continue until Congress amends the CAA. Absent sanctions avoided in this system, the EPA should be able to, with the states, design a workable NAAQS system to guide the country through the GHG emissions reductions process without causing the worst case scenarios envisioned by some. 549. 42 U.S.C. § 7409(d)( 1 ) (2006). 550. H.R. 2454, 11Ith Congress § 721(e)( 1 ) ( 2009 ). 551. 42 U.S.C. §§ 7511-7515 (2006). Congress provided detailed NAAQS demonstration programs in the 1990 Amendments. These "Subpart 2" provisions are not binding on EPA except for the named pollutants, and often do not translate well from one pollutant to another. Consideration of Subpart 2 programs for GHGs is beyond the scope of this paper. 552. Several details concerning trading programs, such as allowance distribution systems, offsets, credits, and international trading, are beyond the scope of this paper. 553. Massachusetts v. Envtl. Prot. Agency, 415 F.3d 50, 81 (D.C. Cir. 2005), rev'd 549 U.S. 497 (2007). CONCLUSION The EPA likely remains vulnerable to a challenge from private organizations requesting promulgation of a GHG NAAQS. Precedent suggests that the EPA may have no discretion in setting a GHG NAAQS given the recent Section 202 endangerment finding and subsequent mobile source GHG regulation. 554 The EPA clearly has the authority today to set a GHG NAAQS, and should exercise that authority to begin the process of reducing GHG emissions to stabilize long term global mean temperatures over time. The EPA would not likely be able to set a primary GHG NAAQS below current ambient CO 2 concentrations. However, because evidence of adverse impacts due to climate change may have already begun, the EPA could conceivably set a secondary GHG NAAQS at or below current ambient CO 2 concentrations. Were the primary NAAQS to reach a level where the entire United States would not attain the standard, the EPA has legal authority under Section 179B to approve SIPs where states, but for emissions emanating from other countries, would attain a NAAQS. While setting a primary NAAQS below current ambient levels would, in time, invoke automatic CAA sanctions, long term secondary NAAQS nonattainment would not involve such punitive sanctions. As part of the NAAQS implementation process, the EPA would be able to use several existing authorities to limit GHG emissions from several sectors. The EPA could establish both downstream (stationary source) and upstream (mobile source) emissions budgeting and trading programs as part of the SIP process. The EPA already regulates mobile source GHGs from light duty vehicles, and could extend GHG regulation to other mobile sources. The NSPS program could limit GHG emissions from new stationary sources. The EPA could modify the ODS program to address HFC refrigerant emissions. In setting a GHG NAAQS, EPA would preclude GHG regulation in the MACT program. Barring judicial or legislative directives, GHG PSD will begin in 2011. The proposed GHG regulatory program would honor Congressional precautionary intent to protect human health and welfare from adverse impacts of air pollution. This program, once 554. Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320, 327-28 (2d Cir. 1976). fully developed, would provide regulatory certainty in the long journey to stabilize long term planetary temperatures by reducing GHG emissions over the next century while providing flexibility to customize compliance strategies over time. * 2012 J.D. Candidate , Evening Division, Temple University - Beasley School of not necessarily reflect the position of Buckeye Partners , L.P. , my employer. 1 . 549 U.S. 497 ( 2007 ). 2. See Timothy Gardner & Ayesha Rascoe , SCENARIOS - Future Is Cloudy for US Climate Change Bill , REUTERS , ( Jul . 22, 2010 , 7 :04 PM), http://www.reuters.com/article/2010/07/22/climate-usa-future- idUSN2210242620100722. 3 . See Conn . v. Am. Elec. Power Co., 582 F.3d 309 , 314 ( 2d Cir . 2009 ); Comer v . Murphy Oil , 585 F.3d 855 , 859 ( 5th Cir . 2009 ); Native Vill . of Kivalina v. Exxonmobil Corp ., 663 F. Supp .2d 863 , 868 (N.D. Cal . 2009 ). 4. See Leslie Kaufman, A Surge In Lawsuits ChallengingEPA on Climate, NY TIMES , ( Nov . 3, 2010 , 2 :12 PM), http://green.blogs.nytimes.com/2010/l 1/03/a- surge-in-lawsuits-challenges-e-p-a-on-climate/?scp=4&sq=climatechange lawsuit&st-cse. 5 . 42 U.S.C. §§ 7401 - 7671 (q) ( 2006 ). 17 . See Paul G. Rogers, The CleanAirAct of 1970 , 16 EPA J. 21 ( 1990 ). These statutes include the Clean Air Amendments of 1970, Pub . L. No. 91 - 604 , 84 Stat. 1676 ( 1970 ), Clean Air Act Amendments of 1977 , Pub. L. No. 95 - 95 , 91 Stat. 685 ( 1977 ), and Clean Air Act of 1990 , Pub. L. No. 101 - 549 , 104 Stat. 2399 ( 1990 ). 18. NATHAN RICHARDSON ET AL., DISCUSSION PAPER , GREENHOUSE GAS IMPLICATIONS OF A KNOWABLE PATHWAY 3 ( 20 10), http://www.rff.org/RFF/ Documents/ RFF-DP- 10 -23.pdf. 19. See Richardson, supranote 11 , at 288 . 20. See Rogers, supra note 17 , at 22 . 21. Pub . L. No. 91 - 604 , § 109 , 84 Stat. 1676 , 1679 ( 1970 ). 22 . 42 U.S.C. § 7408(a)(1)(A) ( 2006 ). 23 . Id . § 7408 ( a)(1)(B ). 24 . See 42 U.S.C. § 7409 ( b)(1) ( 2006 ). 25 . Id . § 7409 (b)( 2 ). 26. Id . 27 . See discussion infra Parts I.B-H . 28 . See Whitman v. Am. Trucking Ass'ns. , 531 U.S. 457 , 473 ( 2001 ). 29 . See 42 U.S.C. § 7408(a)(1)(B ) ( 2006 ). 30 . See 40 C.F.R. §§ 50 . 4 -.5 ( 2010 ). 31 . See Id. §§ 50 . 6 -.7, .13. EPA regulates three different size gradations of particulate matter: (1) total suspended particulate ("TSP"), particles of all sizes; (2) particles smaller than ten microns ("PM1o") that cannot be readily expelled from human lung tissue; and (3) particles smaller than 2.5 microns ("PM 2.5") likely to in APTI 435: ATMOSPHERIC SAMPLING COURSE, at 4-3 , 4 - 4 (Air Pollution Training Inst. , Student Manual , 1983 ), availableat http://www.epa.gov/apti/Materials/ APTI%20435%20student/Student%20Manual/Chapter_4_noTOC-coverMRpf.pdf 32 . See 40 C.F.R. § 50 .8 ( 2010 ). 33 . See id. § 50 . 9 -. 10 . 34. See id. § 50 .11. NO,, is regulated both as its own criteria pollutant and as an 9, 2011 ). 35 . See 40 C.F.R. § 50 .12 ( 2010 ). 36 . See EUR. ENV'T AGENCY , OZONE PRECURSOR , http://eea.europa.eu/maps/ ozone/resourcs/glossary/ozone-precursor (last visited Mar . 26 , 2011 ). 37 . See 40 C.F.R. § 5 1 .100(s) ( 2010 ). Most organic compounds react with NO,, http://www.navc.org/HDozone.php (last visited Apr. 9 , 2011 ). Those that EPA definition. 40 C.F.R. S51 . 100(s)(1) ( 2010 ). 38. See National Ambient Air Quality Standards for Ozone , 75 Fed. Reg. 2 , 938 , 2 , 980 (proposed Jan. 19 , 2010 ). 39. See National Primary and Secondary Ambient Air Quality Standards , 36 Fed . Reg. 8 , 186 (Apr. 30, 1971 ). The form, averaging period, and value of the evolving science . See OMB WATCH , POLLUTED LOGIC : How EPA'S OZONE 61 . Id. § 7426 (b). 62 . Id . § 7426 (c). 63 . Id . § 7415 (a). Section 115 international protections are limited to countries ACT AuTHORiTIEs AND GHGs 14 ( 2008 ), availableat http://www.epa.gov/air/ caaac/pdfs/20080 1tsirigotis.pdf. 64 . 42 U.S.C. § 7509a(a)(2) ( 2010 ). El Paso, TX has implemented the best known Section 179B plan. See BRIAN FOSTER, TEX . NATURAL RES , CONSERVATION COMM'N , SECTION 179B INTERNATIONAL BORDER AREAS 14 ( 2002 ), http://www.jac-ccc.org/minutes/jac-0602 /179B.ppt. 65. Id . 66 . 42 U.S.C. § 7475 (a) ( 2010 ). 67. ENVTL. PROT. AGENCY, NEW SOURCE REVIEW: BASIC INFORMATION, http://www.epa.gov/NSR/info.html (last visited May. 15 , 2011 ). 68 . 40 C.F.R. § 52 . 21 (b)(2) ( 2010 ). "Major modification means any physical replacement" from the definition of a major modification . Id. § 52.21 (b) ( 2)(iii)(a ). 69. Id. § 52.21(b)(1) . 70 . 42 U.S.C. § 7475 (a) ( 2010 ). Section 169 ( 1 ) (42 U.S.C. § 7479 ( 1 ) ( 2010 )) regulations implementing Section 165 (40 C.F.R. § 52 .21 ( 2010 ) ) list the regulated criteria pollutants regulated under the 40 C.F .R. § 60 NSPS program. 71 . 42 U.S.C. § 7602 (z) ( 2010 ). 72 . Id . § 7479 ( 1 ) ( 2010 ). The statute lists most common industrial activities in the source category list subject to the 100 ton per year ("TPY") threshold . These subject to a 250 TPY threshold . A 100 TPY threshold applies in all nonattainment areas. Potential to emit is the maximum amount a facility may emit in a year. 40 C.F.R . § 52 . 21 (b)(4) ( 2010 ). 73 . 40 C.F.R. § 52 .21(s) ( 2010 ). 74. ENVTL. PROT. AGENCY, NEW SOURCE REVIEW WORKSHOP MANUAL: PERMITTING DRAFT A . 22 ( 1990 ), availableat http://www.epa.gov/ttn/nsr/gen/ wkshpman.pdf. 75 . 42 U.S.C. §§ 7651 - 7651 (o) ( 2010 ). 76 . Id . § 7651b(a) ( 2010 ). 77 . Id . § 7651b(b) ( 2010 ). 78. ENVTL. PROT. AGENCY, CAP AND TRADE: ACID RAIN PROGRAM RESULTS , availableat http://www.epa.gov/capandtrade/documents/ctresults. pdf. 79. AM. METEOROLOGICAL Soc'Y , Legislation : A Look at U.S. Air Pollution cleanairlegisl. html (last visited Oct . 10 , 2010 ). 80 . 42 U.S.C. § 7411 ( b)(1)(B ) ( 2010 ). Because facilities must comply with standards within one year of proposal . Id . 81 . In the statute, "his" refers to the judgment of the current EPA Administrator . See 42 U.S.C. § 7411(a)(1) ( 2011 ). 82 . Id . § 7411 ( b)(1)(A ). 83 . Id . § 7411 (b). The NSPS regulatory authority, as discussed below, applies and is subject to NSR, as explained above . See 40 CFR § 52.21 (b) ( 50 )(iv); see also 100 . 42 U.S.C. § 7545(c)(1) ( 2010 ). 101 . Id . § 7671 (k). 102. ENVTL. PROT. AGENCY , OZONE LAYER PROTECTION GLOSSARY , http://www.epa.gov/ozone/defns. html (last visited May 15 , 2011 ). 103 . See generally U.N. ENV'T PROGRAM , OZONE SECRETARIAT , HANDBOOK LAYER ( 2009 ), availableat http://ozone.unep.org/Publications/MPHandbook/MP- Handbook-2009.pdf 104 . 42 U.S.C. § 7671c ( 2010 ). 105 . Id . § 7671d. 106. Id. § 7671k. 107. Id. § 767 If . 108. Id . § 7671 a(e) tbl. 1. ODP is weighted to the stratospheric ozone impact of CFC-1 1 (trichlorofluoromethane , CAS 75-69-4) . Statutory ODP values range from 0.06 for HCFC-142b (1-chloro-1,1-difluoroethane , CAS 75 -68-3) to 10.0 for Halon 1301 (bromotrifluoromethane , CAS 75-63-8) . Id. 109 . 40 C.F.R. § 82 .12 ( 2010 ). 110 . Id . § 82 .23 ( 2010 ). 111 . See 40 C.F.R. § 82 .16 ( 2010 ). The details of the HCFC declining cap are beyond the scope of this article. 112. The issue of the relative merits of regulating GHGs within the existing CAA is beyond the scope of this article . 113. See Richardson, supranote 11 , at 295 . 114. See McKinstry , supra note 122, at 784-85. 115. See id. at 806-14 . 116 . See 42 U.S.C. § 7411(a)(1)(A) ( 2011 ). EPA may set NSPS standards to See also Clean Air Act (CAA) 42 U.S.C. § 7410(a)(2)(A) ( 2006 ), where states set emissions standards to meet State Implementation Plan requirements . 117. See Clean Air Act (CAA) , 42 U.S.C. § 7412 ( b)(6) ( 2006 ). Congress not apply to pollutants listed under this section . ") . 118 . Mass. v. Envtl. Prot. Agency , 549 U.S. 497 ( 2007 ). 119 . 40 C.F.R. § 86 ( 2010 ), 40 C.F.R. § 87 ( 2010 ), 40 C.F.R. § 89 ( 2010 ), 40 C.F.R . § 98 ( 2010 ), 40 C.F.R. § 1033 ( 2010 ), 40 C.F.R. § 1039 ( 2010 ), 40 C.F.R. § 1042 ( 2010 ), 40 C.F.R. § 1045 ( 2010 ), 40 C.F.R. § 1048 ( 2010 ), 40 C.F.R. § 1051 ( 2010 ), 40 C.F.R. 1054 ( 2010 ), 40 C.F.R. § 1065 ( 2010 ); Mandatory Reporting of Greenhouse Gases , 74 Fed. Reg. 56 , 260 (Oct. 30 , 2009 ). 120 . See Massachusetts,549 U.S. at 510 . 121. See id. 122 . See Memorandum from Jonathan Z. Cannon , General Counsel, EPA, to Emitted by Electric Power Generation Sources ( April 10 , 1998 ), available at http://www.law.umaryland.edu/faculty/bpercival/casebook/documents/epaco2mem ol.pdf. 123. See Control of Emissions From New and In-use Highway Vehicles and Engines , 66 Fed. Reg. 7 , 486 (Jan. 23, 2001 ). 124. See Control of Emissions From New Highway Vehicles and Engines , 68 Fed . Reg. 52 , 922 ( Sep . 8, 2003 ). 125 . See id. at 52 , 925 . 126. Massachusetts. v. Envtl. Prot. Agency , 549 U.S. 497 , 511 - 12 ( 2007 ) (internal quotations omitted) . 127. See id at 512 (internal quotations omitted) . 128. See id. at 513 . 138. See Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs , 75 Fed. Reg. 17 , 004 , 17 , 019 ( Apr . 2, 2010 ) (to be codified at 40 C.F.R. pts. 50 , 51 , 70 , 71). 139. Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule , 75 Fed. Reg. 25 , 324 (May 7, 2010 ) (to be codified at 40 C.F.R. pts. 85 , 86 , 600 , 49 C.F.R. pts . 531 , 533 , 536 , 537 , 538). The 2012 automobile model year begins the first business day of January 2011 . 140. See Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs , 75 Fed. Reg. 17 , 007 (Apr. 2 , 2010 ). 141 . See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule , 75 Fed. Reg. 31 , 514 ( Jun . 3, 2010 ) (to be codified at 40 C.F.R. pts. 51 , 52 , 70 , 71). 142. See id at 31 , 546 . 143. See id. (citing Alabama Power v . Costle , 636 F. 2d 323 (D.C. Cir . 1980 )). 144 . See id. at 31 , 543 . 145. See id. For example, standard natural gas combustion units emit 1,000 times AGENCY , AP-42 FIFTH EDITION , COMPILATION OF AIR POLLUTANT EMISSION FACTORS , VOL. 1: STATIONARY POINT AND AREA SOURCES tbl . 1 .4- 1 ( 1998 ), available at http://www.epa.gov/ttnchiel/ap42/ch01/final/cOls04.pdf [hereinafter COMPILATION OF AIR POLLUTANT FACTORS ] . Small boilers, less than 100 million British Thermal Units (mmBTU) per hour, emit 100 pounds NO, per million standard cubic feet (mmSCF) per hour . Table 1 . 4 -2 indicates that the same unit emits 120 , 000 pounds of C0 2, plus a small amount of nitrous oxide and methane, will emit similar ratios between NOx and CO 2 . Typically, fuel combustion units trigger PSD for NO,,, or when burning coal or oil, possibly SO2. Holding the PSD thresholds at 100 or 250 tons, the size of a fuel combustion source triggering PSD unit required to heat a large office complex . Therefore, EPA considered requiring 428 . 42 U.S.C. § 7410(k)(5) ( 2010 ). 429 . Id . 430 . Id . 431. ENVTL. PROT. AGENCY, NOx BUDGET TRADING PROGRAM - BASIC INFORMATION ( 2009 ), availableat http://www.epa.gov/airmarkt/progsregs/nox/ docs/NBPbasicinfo.pdf [hereinafter NOx BUDGET TRADING PROGRAM]. 432 . See Michigan v. Envtl. Prot. Agency , 213 F.3d 663 , 673 (D.C. Cir . 2000 ) (citing 42 U .S.C. § 7410(a)(2)(D)(i)(I) ( 2006 )). 433 . See id. 434 . 40 C.F.R. § 96 ( 2010 ). This program was known as the "Ozone Transport Commission ("OTC") NOx Budget Program" between 1999 and 2002 . 435. Finding of Significant Contribution and Rulemaking for Certain States in Regional Transport of Ozone , 63 Fed. Reg. 57 , 356 (Oct. 27 , 1998 ). This program trading system is beyond the scope of this paper . 436. NOx BUDGET TRADING PROGRAM, supranote 431, at 5. 437. See Michigan, 213 F.3d at 673 . 438. Finding of Significant Contribution and Rulemaking for Certain States in Transport of Ozone, 63 Fed. Reg. at 53 , 758 . 439. Id . 440 . Id . 441 . Interstate Ozone Transport: Response to Court Decisions on the NOx SIP Call , NOx SIP Call Technical Amendments, and Section 126 Rules , 69 Fed. Reg. 21 , 604 , 21 , 606 - 07 (Apr. 21, 2004 ). 442 . Michigan , 213 F.3d at 671; see id. at 688 . 443. ENVTL. PROT. AGENCY, THE NOx BUDGET TRADING PROGRAM: 2008 EMIssioN , COMPLIANCE , AND MARKET DATA 1 ( 2009 ), http://www.epa.gov/ airmarkets/progress/NBP 1/NBP_2008_ ECMData .pdf. 444. Interstate Ozone Transport: Response to Court Decisions on the NOx SIP Call , NOx SIP Call Technical Amendments, and Section 126 Rules , 69 Fed. Reg. at 21 , 606 - 07 . 445 . Finding of Significant Contribution and Rulemaking for Certain States in Regional Transport of Ozone , 63 Fed. Reg. 53 , 758 (Oct. 27 , 1998 ). 446 . See Michigan, 213 F.3d at 695. 447. See Rule To Reduce Interstate Transport of Fine Particulate Matter and the NOx SIP Call , 70 Fed. Reg. 25 , 162 , 25 ,174 (May 12, 2005 ). 448 . See 42 U.S.C. § 7410(a)(2)(D)(ii ) ( 2006 ). 449 . See Sierra Club v. Envtl. Prot. Agency , 346 F.3d 955 , 963 ( 9th Cir . 2003 ). causing the NAAQS exceedance were emitted from outside the United States . 450 . 42 U.S.C. § 7509a(a)(2) ( 2010 ). 451. Sierra Club, 346 F.3d at 957. 452. Id.at 958 . 453. Revisions to the California State Implementation Plan, Kern County Air Pollution Control District and Imperial County Air Pollution Control District , 66 Fed . Reg. 42 , 126 (Aug. 10, 2001 ). 454 . Sierra Club, 346 F. 3d at 959 (citing Revisions to the California State County Air Pollution Control District: Direct Final Rule , 66 Fed. Reg. at 42 ,127). 455. Id.at 960. 456. Id. at 963. 457. See id 458. See Giovinazzo, supra note 11 , at 156 . 459. McCubbin , supra note 11, at 464 . 460. See , e.g., id. 461 . See Richardson, supranote 11 , at 298 . 462. See Stavins, supra note 369 at 298-99 463 . 42 U.S.C. § 7503 ( 2006 ); 42 U.S.C. §§ 7651 - 7651 (o) ( 2006 ); Finding of Ozone , 63 Fed. Reg. 57 , 356 (Oct. 27 , 1998 ); 42 U.S.C. §§ 76 71 - 7 6 7 1p ( 2006 ). 464 . Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export , 73 Fed. Reg. 78 , 680 , 78 , 694 (Dec. 23 , 2008 ); Nordhaus & Danish, supranote 40606 , at 129- 30 . 465 . See 2008 Emission, Compliance, and Market Analyses, ENVTL . PROT. AGENCY , http://www.epa.gov/airmarkt/progress/ARP_2.html (last visited May 20 , 2011 ). 466. ENVTL. PROT. AGENCY, DRAFT INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKs: 1990-2009 ES -4 to ES- 16 ( 2011 ), available at http://epa.gov/climatechange/emissions/downloads11 / US-GHG-Inventory- 2011- Complete Report.pdf. 467 . See , e.g., McKinstry, supra note 12 , at 785-86; Nordhaus & Danish, supra note 406, at 129-30; Reitze, supra note 8, at 24- 25 . 468 . David M. Driesen & Amy Sinden , The Missing Instrument: Dirty Input Limits , 33 HARv. ENVTL. L. REV. 65 , 80 - 81 ( 2009 ). 469 . Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards , 75 Fed. Reg. 25 , 324 (May 7, 2010 ); COMPILATION OF AIR POLLUTANT FACTORS, supranote 145, at 1.4-1.6. 470. See id. 471. See id. 472 . Nordhaus & Danish, supranote 406 , at 128- 29 . 473 . For example, hydrogen steam reformers use natural gas to manufacture PUB. POLICY , HYDROGEN PRODUCTION 1 ( 2008 ), http://policy.rutgers.edulceeep/ hydrogen/basics/production.php (last visited Apr . 18 , 2011 ). 474 . See , e.g., National Emission Standards for Hazardous Air Pollutants for Heaters , 76 Fed. Reg. 15 , 554 , 15 , 573 - 74 (Mar. 21, 2011 ). EPA requires energy assessments because of operating variability among boilers over time. 475. For example, CO2 is created as a byproduct of the hydrogen steam reformation process . See HYDROGEN LEARNING CTR., supranote 473. 476. The largest 10 , 000 GHG emitting facilities begin GHG reporting in 2011 for calendar year 2010 emissions. See News Release, ENVTL . PROT. AGENCY, EPA Begin in 2010 (Sept. 22 , 2009 ), availableat http://yosemite.epa.gov/opal admpress.nsf/d985312f6895893b852574ac005fle40/194e412153fcffea8525763900 530d75!OpenDocument. 477 . 40 C.F.R. § 98 ( 2011 ). 478 . See , e.g., Nordhaus & Danish, supra note 406 , at 129-30; Stavins, supra note 369, at 309-10. 479. PEW CENTER ON GLOBAL CLIMATE CHANGE, supranote 355, at 1 . 480. 42 U.S.C. § 7410 (d)(2 )( A ) ( 2010 ). 481. HRVOC Emissions Cap and TradeProgram , TEXAS COMM'N ON ENVTL. hrvoc eptprog . html (last visited May 20 , 2011 ). 482 . Regional Clean Air Incentives Market , S. COAST AIR QUALITY MGMT . DIST., http://www.aqmd.gov/reclaim/index. htm (last visited Apr . 30 , 2011 ). 488. REG'L GREENHOUSE GAS INITIATIVE , http://www.rggi.org/home (last visited May 20 , 2011 ). 489. REG'L GREENHOUSE GAS INITIATIVE , OVERVIEW OF RGGI CO2 BUDGET TRADING PROGRAM 1 ( 2007 ), http://www.rggi.org/docs/program-summary 10 _ 07 .pdf. 490. See generallyREG'L GREENHOUSE GAS INITIATIVE , REG'L GREENHOUSE GAS INITIATIVE MODEL RULE ( 2007 ), availableat http://www.rggi.org/docs/ model rulecorrected 1_5_07.pdf. 491 . See , e.g., John C. Dernbach et al., Making the States Full PartnersIn A Development , 40 ENVTL. L. REP. 10 , 597 , 10 , 597 - 98 ( 2010 ). 492. McKinstry , supra note 12, at 780- 82 . 493 . Virginia v. Envtl. Prot. Agency , 108 F.3d 1397 , 1415 (D.C. Cir . 1997 ). 494 . Id . 538 . 42 U.S.C. § 7475 (a) ( 2006 ); 42 U.S.C.A. § 7479 ( 1 ) ( 2006 ). 539 . 42 U.S.C. § 7503 (c) ( 2006 ). 540 . See discussion supraPart I.H. 541 . UNITED NATIONS FRAMEWORK CONVENTION FOR CLIMATE CHANGE methodologicalissues/items/231 1.php (last visited May 17 , 2011 ). 542. A. R. Ravishankara et.al., Do HydrofluorocarbonsDestroy Stratospheric Ozone ?, 263 Scl. 71 , 75 ( 1994 ). The R- 134a ODP was published at between 1 x 10-5 and 2 x 10-5 , where R -ll has an ODP value of 1 . 543. Recharging Your Car's Air Conditioner With Refrigerant, ENVTL . PROT. AGENCY , http://www.epa.gov/ozone/title6/609/recharge. html (last visited May 20 , 2011 ). Automobile refrigerant charges can vary between 1.8 and 2.2 pounds per vehicle. 544. Protection of Stratospheric Ozone: Ban on the Sale or Distribution of Pre- Charged Appliances , 74 Fed. Reg. 66 , 463 (proposed Dec. 15 , 2009 ) (to be codified at 40 C.F.R. pt . 82 ).


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Rich Raiders. How EPA Could Implement a Greenhouse Gas NAAQS, Fordham Environmental Law Review, 2011,