by Hannah Chang
With Senate Majority Leader Harry Reid’s decision to delay introduction of a climate bill to the Senate floor, the focus is now more than ever on EPA regulation of greenhouse gases (GHGs). Senator Lisa Murkowski, undeterred by the failure of her proposed resolution of disapproval to overturn EPA’s GHG endangerment finding, has proposed Senator Jay Rockefeller’s Stationary Source Regulations Delay Act as an amendment (No. 4517) to a small business tax relief bill (H.R. 5297). Originally introduced on March 4, 2010, the Delay Act is co-sponsored by six centrist Democrats all of whom voted to reject Murkowski’s resolution. A White House official indicated that President Obama would veto the Rockefeller bill if passed. (That announcement was made before the bill was proposed as an amendment to the Small Business Jobs and Credit Act.)
Unlike Senator Murkowski’s resolution of disapproval, which would have entirely disabled EPA’s regulatory authority over GHGs, the Delay Act is written to allow continuation of relatively uncontroversial EPA efforts to regulate GHGs. The Delay Act’s main target is the Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule (Tailoring Rule), which is slated to take effect on January 2, 2011 and would phase in New Source Review PSD and Title V operating permit requirements for stationary sources of GHGs.
This blog post analyzes the text of the Delay Act to assess the extent to which it displaces EPA authority. It appears that exceptions to the Act’s bar on EPA action leave room for EPA to take action, such as preparing reports and providing technical guidance, short of regulating stationary sources. Similarly, the language of the Act may permit EPA to take action, such as proposing rules and accepting public comments, short of actually subjecting CO2 and methane to regulation under the Clean Air Act.
The provisions of the Stationary Source Regulations Delay Act
The proposed amendment, entitled “Suspension of Certain EPA Action,” is short, comprised of a subsection (a) that bars EPA action on stationary sources, a subsection (b) setting forth three exceptions to the bar in subsection (a), and a subsection (c) regarding the treatment of CO2 and methane under the Clean Air Act. The amendment (with specific citations removed) reads in its entirety as follows:
“(a) In General.—Except as provided in subsection (b), notwithstanding any provision of the Clean Air Act, during the 2-year period beginning on the date of enactment of this Act, the Administrator of the Environmental Protection Agency may not take any action under the Clean Air Act with respect to any stationary source permitting requirement or any requirement under section 111 of that Act relating to carbon dioxide or methane.
(b) Exceptions.—Subsection (a) shall not apply to—
(1) any action under part A of title II of the Clean Air Act relating to the vehicle emissions standards contained in [docket numbers omitted] or [docket number omitted];
(2) any action relating to the preparation of a report or the enforcement of a reporting requirement; or
(3) any action relating to the provision of technical support at the request of a State.
(c) Treatment.—Notwithstanding any other provision of law, no action taken by the Administrator of the Environmental Protection Agency before the end of the 2-year period described in subsection (a) shall be considered to make carbon dioxide or methane a pollutant subject to regulation under the Clean Air Act for any source other than a new motor vehicle or new motor vehicle engine, as described in section 202(a) of that Act.”
Subsection (a)’s bar on action and subsection (b)’s three exceptions
The act would prevent EPA from regulating CO2 and methane emissions from stationary sources during a two year period beginning on the date of the bill’s enactment. Subsection (a)’s mandate that EPA “may not take any action under the Clean Air Act” regarding stationary source permitting or § 111 contrasts with other legislative language commonly used to bar agency action: “may not obligate or expend any funds for.”
Where this latter language, or similar language barring the use of funds, has been used, it is clear that an agency is prohibited from acting at all. For instance, where Congress has legislated that “none of the remaining funds appropriated . . . may be made available for making a final determination” to list a species under the Endangered Species Act, even minimal agency action was barred. In that case, the scientific studies and field work necessary for making a final determination had already been completed and the only remaining action was in-house review and decisionmaking by the EPA. The Ninth Circuit Court of Appeals found that the remaining process, although it would “require only a slight expenditure of funds,” was barred because “[t]he use of any government resources – whether salaries, employees, paper, or buildings – to accomplish a final listing would entail government expenditures.” Envtl. Defense Ctr. v. Babbit, 73 F.3d 867, 871-72 (9th Cir. 1995).
The Delay Act’s failure to use language prohibiting any use of funds suggests a less-complete bar on action, which raises the question of what constitutes the “action” that EPA is prohibited from taking. Case law is not illuminating on this point, but the Delay Act’s own exceptions to the bar on action, set forth in subsection (b), suggest that EPA may still take some important actions relating to greenhouse gases.
The first exception leaves intact EPA’s authority under the Clean Air Act Title II to regulate motor vehicle emissions that relate to EPA’s GHG endangerment finding or the recently finalized joint rulemaking by EPA and the National Highway Traffic Safety Administration (NHTSA) establishing GHG emissions and fuel economy standards for light-duty vehicles. Although the language of the bill’s mandate addresses only stationary sources and would clearly not affect EPA’s authority to address mobile sources anyway, this exception clarifies an intent to steer clear of the groundbreaking EPA-NHTSA partnership, which is now working on a second phase of the joint rulemaking that would establish light-duty vehicle standards for model years 2017 and beyond.
The second exception indicates that the bar on EPA action does not apply to “any action relating to the preparation of a report or the enforcement of a reporting requirement.” The “reporting requirement[s]” are a pointed reference to EPA’s GHG Reporting Rule, which went into effect on January 1, 2010 and to which EPA continues to add additional source categories and clarifying amendments. The GHG reporting regime would remain untouched under this exception.
Equally important is the Delay Act’s exception for any action “relating to the preparation of a report.” The term “report” is not defined in the Clean Air Act, and “a fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Burns v. Alcala, 420 U.S. 575, 580-581 (1975). The ordinary meaning of report is “a usually detailed account or statement” or “a usually formal record of the proceedings of a meeting or session.” Merriam-Webster Collegiate Dictionary. This broad definition comports with the Clean Air Act’s use of the term, which includes, for instance, a study on “the need for, and feasibility of, controlling emissions of toxic air pollutants which are unregulated under this chapter” that “shall be available for public review and comment and shall include a summary of all comments.” 42 U.S.C. 7521(l)(1). Given this broad understanding of the term “report,” subsection b(2)’s exception is likely quite expansive. EPA probably remains empowered to take a number of steps to study and present findings related to stationary source permitting and § 111 under this exception as written.
The Delay Act’s third exception applies to “any action relating to the provision of technical support at the request of a State.” “Technical support” is not defined in the Clean Air Act or its implementing regulations, but the term is probably understood to include technical guidance to states regarding engineering or technology best practices and standards. Under the Clean Air Act’s New Source Review program, major new or modified sources in attainment areas are required to apply best available control technology (BACT), which is usually determined by State or local permitting agencies. A state could in theory request that EPA provide technical support in the form of guidance on recommended BACT, and under the Delay Act’s exception for “technical support at the request of a State,” EPA could probably comply with such a request.
Moreover, because the Delay Act only requires that a state request provision of technical support, and does not specify that a State request technical support in pursuit of implementing the state’s obligation under the Clean Air Act, it is possible that a state could request that EPA provide technical support on new source performance standards for certain categories of stationary sources. Under § 111, new source performance standards are technology-based standards that apply to specific categories of stationary sources and are developed and implemented by EPA. Under subsection (b)(3)’s exception, EPA probably would not be barred from providing guidance at the request of a state on the types of technology standards that could be imposed on categories of stationary sources. But the exception would not extend to any action by EPA that goes beyond providing mere technical support (i.e. actually implementing such standards).
Subsection (c) and the treatment of CO2 and methane
Subsection (c) of the Delay Act addresses the “treatment” of CO2 and methane under the Clean Air Act: “[N]o action taken by [EPA] before the end of the 2-year period . . . shall be considered to make carbon dioxide or methane a pollutant subject to regulation under the Clean Air Act for any source other than a new motor vehicle or new motor vehicle engine . . . .” EPA has issued guidance interpreting “subject to regulation” specifically in the context of the PSD program, but given that this phrase is used in various sections of the Clean Air Act, the language in § 2(c) appears to prevent EPA from generally regulating CO2 and methane under the Clean Air Act. In other words, EPA would be barred from deeming CO2 and methane criteria pollutants subject to regulation under state implementation plans; EPA would similarly be barred from regulating CO2 and methane as hazardous air pollutants or under § 115 relating to international air pollution.
An interesting choice of language suggests, however, that EPA could take some action during the two-year delay period regarding the treatment of CO2 and methane. The Delay Act indicates that “no action taken . . . shall be considered to make carbon dioxide or methane a pollutant subject to regulation.” This language leaves open the possibility that EPA can take action so long as the action is not considered to subject CO2 and methane to regulation under the Clean Air Act. It is possible that drafting and issuing proposed rules, requesting public comments, and responding to such comments are actions that can be taken because they do not actually subject CO2 and methane to regulation.
 A bill with the same language, H.R. 4753, was introduced in the House of Representative by Rep. Nick Rahall (also of West Virginia) and has 13 co-sponsors, 11 of them Democrats.
 Senators Kent Conrad (ND), Byron Dorgan (ND), Tim Johnson (SD), Ben Nelson (NE), Claire McCaskill (MO), and Jim Webb (VA).
 See, e.g., 10 U.S.C. § 2806b (“Funds may not be obligated or expended in connection with the North Atlantic Treaty Organization Security Investment program . . . .”); 42 U.S.C. § 4822 (“[T]he Secretary [of Housing and Urban Development] may not obligate or expend any funds or otherwise carry out activities related to any other policy development and research project until the report is transmitted.”).
 E.g., EPA, Guideline for Determination of Good Engineering Practice Stack Height (Technical Support Document for the Stack Height Regulations), Revised. Publication No. EPA-450/4-80-023R.
 Guidelines for [Best Available Retrofit Technology] Determinations Under the Regional Haze Rule, 40 C.F.R. Pt. 51, App. Y (guidelines designed to help States and others “(1) identify those sources that must comply with the BART requirement, and (2) determine the level of control technology that represents BART for each source”).
 E.g., 42 U.S.C. § 7412(a)(2) (referring to “motor vehicles or nonroad vehicles subject to regulation under subchapter II of this chapter”), § 7412(b)(2) (“No substance, practice, process or activity regulated under subchapter VI of this chapter shall be subject to regulation under this section.”).