By Stephen Wiegand

EPA recently announced its position regarding the timing of the regulation of greenhouse gases under the Clean Air Act’s Prevention of Significant Deterioration (PSD) Program.

A PSD permit is required before a new industrial facility can be built or an existing facility can be modified in a way that significantly increases pollutant emissions. In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that greenhouse gases are “pollutants” under the Clean Air Act but left open the specific question of whether greenhouse gases could be regulated under the PSD Program. In December 2008, then-EPA Administrator Stephen Johnson issued a memorandum indicating that the PSD Program applies to pollutants that are subject to either an actual provision in the Clean Air Act or a regulation adopted by the EPA under the Act which requires actual control of emissions of that pollutant. However, pollutants such as carbon dioxide, for which EPA regulations only require monitoring and reporting, are not subject to PSD permitting.

In October 2009, new EPA Administrator Lisa Jackson announced that EPA would reconsider and accept public comment on the Johnson memorandum. On March 29, 2010, EPA announced its final decision regarding the reconsideration. Specifically, EPA determined that PSD permitting is not triggered for pollutants such as greenhouse gases until a final nationwide rule requires actual control of emissions of the pollutant. Thus, in the case of greenhouse gases, EPA announced that the PSD requirements will likely not be triggered until January 2, 2011, the date upon which EPA’s rule limiting the greenhouse gas emissions for cars and light trucks is expected to take effect.

For more information on the announcement, see the EPA New Source Review.