All it takes is a Lawsuit

Shawn Martini is Communications Director for Colorado Farm Bureau.

While inhaling carbon dioxide is essential to plant life, and exhaling it is essential to human life, this same carbon dioxide is now considered a threat to public health, if it comes from a factory or power plant. This according to the Environmental Protection Agency (EPA) who’s made it their mission to protect citizens from the dangerous gas.

On January 2nd of this year, carbon dioxide emissions became “subject to regulation” under the Clean Air Act and the EPA is working furiously with states to further regulate American industry.  The coming system of regulatory cap and trade is based on EPA’s endangerment finding: the regulatory tool required by the Clean Air Act to regulate a particular pollutant. In this case the “pollutant” is the same gas we exhale with every breath. The implications of the coming regulations are dire.

By July large emitters of carbon, such as power plants and other industrial facilities will be forced to obtain emissions permits and limit their output of the gas. EPA estimates that “only” 1600 sources nationwide will fall under this “tailoring” rule which only regulates the largest emitters (those that emit over 25,000 tons of CO2). Smaller emitters will be excluded from the regulation.

So why would Farm Bureau and other industries spend so much time opposing a rule that the EPA has exempted them from?

Because all it takes is a lawsuit.

In order to save itself some work, the EPA has increased the level of emissions at which the regulation takes effect. This reduces the number of entities that will be forced to meet emission requirements. Aside from the unfair nature of the arbitrary level, the threshold for the applicability of Clean Air Act requirements is contained in statute (250 tons) and the EPA’s legal authority to increase the threshold is in question.

What this means is the EPA will lose the first lawsuit that comes along, suing it for failing to apply the statutory threshold across all industries and sources equally (the rule only applies to stationary sources like factories).

Even if no lawsuit materializes, or a judge sides with EPA, carbon regulation would eventually hit everyone. The EPA says that the 25,000 ton tailoring rule is only the “first phase” of regulation. As time goes on regulatory screws will be tightened, catching more small businesses and industries in the carbon dragnet. CFB was told by an EPA bureaucrat last year not to worry about carbon regulation “because you won’t be regulated until 2016.”

Not very comforting.

The Ag industry is currently facing duplicative permitting requirments on ag chemicals precisely because of a lawsuit against EPA. Another lawsuit filed in California challenges EPA’s entire chemical review process, claiming it endangers animals listed under the Endangered Species Act. Another suit seeks to force the Forest Service to complete an environmental impact statement for every grazing permit it issues. This would obviously mean the end of grazing on public lands as we know it.

Environmentalists know just as well as we do, all it takes is a lawsuit.

This column is the second in a series of three. The first column can be read here.


One response to this post.

  1. […] This column is the final in a series of three on the EPA. You can find the first column here and the second here. […]


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