Another Blow Against Common Sense: EPA Proposes to Revoke Bush Aggregation Rule

Last year, EPA delayed implementation of the Bush EPA’s Aggregation Rule; at the time, I said that the rule was on life support. Earlier this week, EPA announced that it was formally proposing to revoke the aggregation rule. It looks as though the rule is now off life support and it’s time for the last rites.

The aggregation rule always seemed to me a piece of simple, common-sense regulatory reform; it was not a case of wild-eyed right wing radicals trying to gut environmental regulations. The basic issue is this. EPA wants to make certain that regulated facilities don’t avoid NSR review by carving big projects up into lots of little ones, each of which might escape review. That’s a perfectly reasonable goal, but I still don’t understand what’s wrong with having a simple test – whether the separate projects are “substantially related” – to determine whether to aggregate them. One way to put it is to ask why EPA would ever want to aggregate projects that are not “substantially related.” 

EPA has stated that the term “substantially related” is “vague.” It may not be perfect, but few things are in this world, particularly the world of NSR regulation. In any case, that very vagueness would give EPA a lot of discretion in determining whether aggregation would be required. EPA also noted that the rule fails “to consider a company’s intent.” Is it really better for EPA to be in the business of determining a company’s subjective intent than to answer the objective question of whether projects are in fact substantially related?

After criticizing the subjective element of EPA’s preferred approach, I should hesitate to speculate about EPA’s motives here, but this is what I think EPA’s proposal is about. EPA believes that the NSR program is its best tool for obtaining emissions reductions and it will craft every piece of the NSR program to provide maximum ability to coerce reductions – regardless of whether such coercion is consistent with the statutory provisions or whether the regulatory approach is cost-effective. Moreover, EPA’s position pretty much explicitly states that it does not trust business – a truer look into EPA’s views on the regulated community than any platitudes EPA may provide about wanting to work with the business community in crafting workable environmental regulations.

My depression is substantially related to the flaws in the NSR program.

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