Duke Report Looks at Way to Make New EPA Rules Feasible

FOR IMMEDIATE RELEASE: Tuesday, Oct. 12, 2010

CONTACT: Erin McKenzie
(919) 613-3652
erin.mckenzie@duke.edu

DURHAM N.C. -- The U.S. Environmental Protection Agency could have a workable, cost-effective plan for regulating large emitters of greenhouse gases under the Clean Air Act, according to a new report by Duke University’s Nicholas Institute for Environmental Policy Solutions.

The guidelines, featured in a 14-page paper released Tuesday, outline not only the potential for regulating greenhouse gases under Section 111 of the Act, but forecast the possible legal challenges the agency could face when designing standards to help refineries, power plants and other facilities comply with the EPA’s new rules for pollution control.

“There is a lot of concern on Capitol Hill that regulating greenhouse gases under the Clean Air Act would be a mess,” said Jonas Monast, author and co-director of the Climate Change Policy Partnership at Duke. “Addressing climate change while maintaining political support requires a sensible, cost-effective approach. This report, developed following a gathering of Clean Air Act experts at the university, shows the EPA has the tools to strike that balance.”

The EPA’s authority to impose reductions in greenhouse gases has been under fire since a 2007 Supreme Court decision gave the EPA the ability to regulate the pollutants under the Clean Air Act. Some U.S. lawmakers want to pass legislation blocking the agency from pursuing the controversial new greenhouse gas rules for large stationary sources, citing, among other things, cost and lost jobs.

The report, “Avoiding the Glorious Mess: A Sensible Approach to Climate Change and the Clean Air Act,” by Monast, Tim Profeta and David Cooley, looks to address these economic concerns while encompassing principles EPA Administrator Lisa Jackson recently announced are guiding the agency in regulating these new sources.

In particular, the report indicates regulation under Section 111 could:

-- Allow the EPA to design a sector-based approach for regulating sources that could be tailored to different areas of the economy to help minimize the cost of compliance;

-- Start a regulatory program more quickly since some standards for controlling pollutants already exist under the section; and

-- Provide covered entities flexibility in meeting more stringent regulatory standards by establishing a market-based carbon-trading program for the utility sector that could be expanded to include others later.

The report also acknowledges there will be hurdles to this approach, on top of political concerns and the lawsuits already making their way through the courts. Further legal challenges involving the EPA’s Tailoring Rule -- a policy aimed at shielding small polluters from the Clean Air Act permitting requirements -- are expected. Pursuing a market-based approach under Section 111 could lead to even more legal action.

"The EPA faces legal challenges no matter how it proceeds on climate change,” said Cooley, assistant in policy and research at the Nicholas Institute. “The goal is to identify options that allow the maximum flexibility to address the problem while putting the EPA on strong legal ground. We believe that Section 111 can do both."

The authors say the tools are there if the EPA plans accordingly.

“The agency is facing a mandatory duty to develop regulations—some of which could create severe political kickback and even cost them their authority,” said Profeta, director of the Nicholas Institute. “We are suggesting they set a course that avoids the worst of these outcomes. If the EPA could use its authority in a way that harvests some of the political compromise, which has occurred in the legislative debate, it could create a program that can be ported into a future comprehensive legislative scheme.”

“Avoiding the Glorious Mess: A Sensible Approach to Climate Change and the Clean Air Act,” is available on the Nicholas Institute’s website: http://nicholasinstitute.duke.edu/climate/policydesign/avoiding-the-glorious-mess

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