EPA Says It Will Reconsider Johnson's Memo On CO2 Regulation

Feb 17: U.S. EPA announced that it has granted a petition for reconsideration of a Bush Administration memo regarding the scope of the Clean Air Act. The interpretive memo, put forward by then-EPA Administrator Stephen Johnson in December 2008, addresses when the Prevention of Significant Deterioration program applies to carbon dioxide, a chief greenhouse gas. Concerns were soon raised about the memo’s potential impact on American communities and neighborhoods. The Sierra Club and other parties in early January petitioned EPA to reconsider the Johnson memorandum.

When Johnson issued the memo, U.S. Senator Barbara Boxer (D-CA), Chairman of the Senate Committee on Environment and Public Works, was outraged and issued a statement saying the EPA Administrator "has run amok and will waste taxpayer dollars in his most recent action to avoid controlling global warming pollution in Clean Air Act permits." [See WIMS 12/23/08]. Johnson's December 18 memo to Regional Administrators outlined his policy calling for no regulation of carbon dioxide (CO2) emissions under the Clean Air Act. At the time he was clarifying the EPA Environmental Appeals Board ruling that concluded EPA had no valid reason for refusing to limit from new coal-fired power plants the carbon dioxide (CO2) emissions that cause global warming [See WIMS 11/14/08].

President Obama's newly appointed EPA Administrator Lisa Jackson said, “I am granting this petition because we must learn more about how this memo affects all relevant stakeholders impacted by its provisions. This will be a fair, impartial and open process that will allow the American public and key stakeholders to review this memorandum and to comment on its potential effects on communities across the country. EPA’s fundamental mission is to protect human health and the environment and we intend to do just that.” She said EPA will vigorously review the Johnson memo to ensure that it is consistent with the Obama Administration’s climate change strategy and interpretation of the Clean Air Act and the Agency will abide by the three core principles of: overwhelming transparency, adherence to the rule of law, and science-based policies and regulations.

To facilitate a transparent, impartial and fair review, EPA will seek comment from the general public on this memo and its potential impact on American communities. The public comment period is consistent with the recommendations of the Environmental Appeals Board and allows for a measured, inclusive approach to reviewing this memo. The EAB last year held that EPA had not adequately articulated why its interpretation of the PSD program did not apply to carbon dioxide.

Although Sierra Club had requested that the Agency "stay" the effectiveness of the Johnson memo during the reconsideration, EPA said it was not taking that action at this time. EPA will publish a notice of the reconsideration and commenting instructions in the Federal Register in the "near future."

Sierra Club, the Natural Resources Defense Council (NRDC), and the Environmental Defense Fund filed suit against the Bush administration to overturn the Johnson Memo. The groups indicated that that litigation will now be put on hold as a result of EPA'S announcement. Sierra Club issued a statement saying, "Today's victory is yet another indication that change really has come to Washington, and to EPA in particular. This decision stops the Bush Administration's final, last-minute effort to saddle President Obama with its do-nothing policy on global warming. . . With coal-fired power plants emitting more than 30 percent of our global warming pollution, regulating their carbon dioxide is essential to making real progress in the fight against global warming. . . Today's announcement should cast significant further doubt on the approximately 100 coal-fired power plants that the industry is trying to rush through the permitting process without any limits on carbon dioxide."

Access a release from EPA (click here). Access the EPA letter to Sierra Club granting the reconsideration (click here). Access Johnson's December 18, 2008 memo (click here). Access the EPA Environmental Appeals Board ruling from the WIMS link above. Access a release from Sierra Club (click here). Access a statement from NRDC (click here). [*Energy, *Air, *Climate]