Midnight Rule Update: Obama admin. reconsiders controlling CO2 under clean air laws

Published February 17, 2009 @ 07:51PM PT

The Obama administration took a significant step towards unraveling a last-minute attempt by the Bush administration to prevent the federal government from regulating carbon dioxide emissions -- the primary cause of human-propelled global warming -- as an air pollutant.

Today the Environmental Protection Agency granted a petition filed by the Sierra Club and others to reconsider the "Johnson memorandum" of Dec. 18, 2008, in which Bush EPA chief Stephen Johnson tried to exclude CO2 from federal controls under the Clean Air Act. It has not committed to halting any actions enforcing that opinion pending its review, however.

However, in her letter to the Sierra Club, EPA administrator Lisa Jackson wrote that "[i]n the meantime,

the memorandum does not bind State issuing permits under their own State Implementation Plans. In addition, given the Agency's decision to grand reconsideration of the memorandum, other [legally relevant] permitting authorities should not assume that the memorandum is the final word on the appropriate interpretation of Clean Air Act requirements.

While many legislators have said they see no chance of carbon cap legislation in Congress before 2010, this action by the EPA represents the other road to take, and the one the administration (and before the election, the Obama campaign) said it would take: controlling greenhouse gas emissions under the Clean Air Act, as a danger to public health. This would change the regulatory picture considerably on any new coal plants currently in development (since none of them are carbon-sequestering "clean" coal-fired power plants), and get around Congress, but would also be an incredibly complex way to curb carbon dioxide emission -- much less straightforward that cap-and-trade, by comparision. Dave Roberts posts his analysis of this bigger picture on Gristmill.

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