{"id":218790,"date":"2010-01-22T08:01:15","date_gmt":"2010-01-22T13:01:15","guid":{"rendered":"http:\/\/papundits.wordpress.com\/?p=30232"},"modified":"2010-01-22T08:01:15","modified_gmt":"2010-01-22T13:01:15","slug":"the-mass-v-epa-regulatory-cascade-if-epa-does-not-poach-legislative-power-what-will-it-cost","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/218790","title":{"rendered":"The Mass. v. EPA Regulatory Cascade: If EPA Does Not Poach Legislative Power, What Will It Cost?"},"content":{"rendered":"
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\"\"<\/a>By Marlo Lewis<\/strong><\/p>\n

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TonyfromOz prefaces …..<\/span><\/p>\n

Read this very carefully, and the first thing that comes to mind is that you have to seriously wonder if these people actually sit down and think about what they are doing, before blindly rushing in and introducing Regulatory Measures and legislation that will generate so many Administrative nightmares, that not only will ordinary people be tied up with paper work, but it must surely bog down Government departments at all levels with what must amount to extra millions of manhours of work, just working through the submitted paperwork. The lure of the money on tap with all of this blinds those who introduce this, mainly because it’s not them who have to do all the work. Ordinary people will be tied up doing that work, because, believe me, this will be one area where those ’supposed’ Government created ‘green jobs’ will not eventuate. People will be directed to do the extra work, and those Departments will expect them to do it with no extra time allowed for the process.<\/span><\/p>\n<\/blockquote>\n

Today, Reps. Lamar Smith (R-TX), Sam Graves (R-MO), Trent Franks (R-AZ), and Lynn Westmoreland (R-GA) sent a letter<\/a> to Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein\u00a0sharply critical of\u00a0EPA\u2019s December 7, 2009 finding<\/a> that \u201cair pollution\u201d from carbon dioxide (CO2) and other greenhouse gases (GHGs) endangers public health and welfare.<\/p>\n

\u201cOn the basis of EPA\u2019s endangerment finding,\u201d the legislators warn, \u201cvirtually every economic activity undertaken in America stands to come under the thumb of federal regulation.\u201d They explain: \u201cThese actions begin with EPA\u2019s and the Department of Transportation\u2019s proposed new light vehicle emission standards, continue through greenhouse gas (GHG) preconstruction and operating permit requirements for stationary sources and extend as far as the mind can contemplate.\u201d They continue: \u201cIn these ways, EPA threatens to burden our economy with vastly expanded regulation not contemplated by Congress when it passed the Clean Air Act.\u201d<\/p>\n

Yes, indeed.\u00a0As I\u00a0discuss here<\/a> and here<\/a>,\u00a0EPA\u2019s\u00a0endangerment finding\u00a0starts a regulatory cascade that could\u00a0(1) subject tens of thousands of previously unregulated small businesses to Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) pre-construction permitting regulations, (2) subject millions of small businesses to CAA Title V operating permit requirements, and (3)\u00a0compel EPA to\u00a0establish national ambient air quality standards (NAAQS) that would effectively require the United States to de-industrialize. The Supreme Court pushed EPA to make the endangerment finding in its April 2007 Massachusetts v. EPA<\/em> decision.<\/p>\n

<\/span>The four Members of Congress ask OIRA chief Sunstein to\u00a0make EPA convene a Small Business Advocacy Review Panel to develop and evaluate regulatory alternatives to mimimize the\u00a0endangerment finding\u2019s impacts\u00a0on small business.\u00a0Until and unless EPA does this, the lawmakers say, the endangerment finding should be \u201cwithdrawn.\u201d<\/p>\n

The representatives acknowledge that EPA\u2019s proposed October 2009 Tailoring Rule<\/a> \u201cseeks to delay for a handful of years the imposition of requirements on sources emitting less than 25,000 tons of carbon dioxide per year.\u201d However, this fix is by design temporary, and it is legally dubious, since EPA would be\u00a0flouting clear statutory language. Under the CAA,\u00a0entities must obtain a PSD permit in order to construct or modify a facility with a potential to emit 250 tons per year of a CAA-regulated air pollutant, and a Title V permit in order to operate a facility with a potential to emit 100 tons per year.<\/p>\n

EPA estimates that if these provisions are\u00a0enforced as written, the number of\u00a0entities\u00a0applying for PSD permits would jump from 280 to 41,000 per year, and the number applying for\u00a0Title V permits would\u00a0jump from 14,700 to 6.1 million per year.\u00a0The flood of permit applications would overwhelm agency administrative resources, the permitting programs would\u00a0implode under their own weight, construction activity would\u00a0grind to a halt, and millions\u00a0of firms would find themselves in legal limbo \u2014 all in the midst of the worst economic downturn since the Great Depression.<\/p>\n

It will be interesting to see how Sunstein responds to the lawmakers\u2019 letter.\u00a0Will he stick up for small business and honor the spirit of the Regulatory Flexibility Act<\/a> (RFA),\u00a0or\u00a0will\u00a0he\u00a0bless EPA\u2019s\u00a0evasive legal semantics?<\/p>\n

Under the RFA, agencies are to\u00a0convene a small business review panel\u00a0unless the agency head certifies that\u00a0the proposed regulation\u00a0will not have\u00a0a \u201csignificant impact upon a substantial number of small entities.\u201d\u00a0\u00a0In a recent year,\u00a0each PSD permit on average cost $125,120 and 866 burden hours<\/a> for sources to obtain (just the paperwork and administrative costs,\u00a0exclusive of any\u00a0associated technology investments). The going rate for Title V administrative fees is $43.75 per ton, implying\u00a0a virtual carbon tax\u00a0(exclusive of administrative expenses) of $4,375 for a\u00a0small business\u00a0emitting 100 tons of CO2 per year.\u00a0The Tailoring Rule\u00a0estimates (p. 55338) that if small sources of CO2 must comply with the law as written, rather than as doctored by EPA, they will incur an expense of more than $38 billion just for Title V\u00a0compliance over the next six years.\u00a0\u00a0A significant economic impact by any standard.<\/p>\n

Note also that the $38 billion figure refers just to the direct expenses small firms would incur to comply with Title V. It does not include the reduced output and job losses due to the diversion of resources to regulatory compliance. Nor does it include\u00a0the loss of\u00a0investment in firms that, due to their sheer number,\u00a0face years of delay and uncertainty in obtaining permits to build or operate their facilities.<\/p>\n

The endangerment finding\u00a0is what\u00a0tees up all\u00a0these\u00a0costs and consequences, so you\u2019d think it would be a no brainer that it has\u00a0\u201dsignificant impact upon a substantial number of small entities.\u201d<\/p>\n\n\n\n
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