The next Bush-era rule to be tossed overboard may be a big one, namely EPA’s hands-off stance on regulation of CO2 for PSD purposes. EPA Administrator Lisa Jackson said today in a letter to the Sierra Club that the agency would grant the group’s petition seeking reconsideration of former Administrator Johnson’s December 18th memo which described why EPA should not regulate CO2 emissions from new coal-fired plants. Although EPA did not stay the effectiveness of the Johnson memo, the letter emphasizes that the memo does not bind States issuing permits under their own State Implementation Plans, and cautions other PSD permitting authorities against assuming that the Johnson memo is the final word on interpreting the Clean Air Act requirements. EPA will take public comment on concerns raised over the Johnson memo and the appeals board’s decision, and plans to publish a notice of proposed rulemaking soon.
As we previously noted, the new administration was likely to be saddled with the decision of whether CO2 emissions must play a part in PSD decisions, given the Deseret Power decision that the Clean Air Act was ambiguous on whether the EPA must impose a BACT limit for CO2. Now it looks like the Obama administration may take the issue on soon.