EPA has publicly taken the position that the current Clean Air Act is ill-suited to regulation of CO2 as a pollutant. In an advance notice of proposed rulemaking. EPA stated that regulation of greenhouse gases “could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land.” (Of course, proponents of regulation of greenhouse gases under the CAA might say that that is precisely what is needed to address the problem of global climate change.)
Given EPA’s stated reluctance to regulate CO2 and other greenhouse gases under the CAA, it came as something of a surprise this week when it became widely known that EPA recently approved an amendment to Delaware’s state implementation plan, or SIP, incorporating state regulations in which Delaware would in fact regulate emissions of CO2 from stationary sources in that state.
While EPA is apparently still taking the position that CO2 is not a regulated pollutant under the CAA – and is apparently having second thoughts about its approval of the Delaware SIP amendment, environmental groups are taking a different position. Patrice Simms, with the NRDC recently told the BNA that the Delaware SIP does make CO2 a regulated pollutant under the CAA. In the absence of a formal change of heart by EPA, this decision is certain to be cited broadly by those seeking immediate regulation of CO2 by EPA.