U.S. court gives green light to greenhouse gas regulations while Canada stands still

Blog - Dec. 14, 2010 - By P.J. Partington

In less than 20 days' time, President Obama's Environmental Protection Agency (EPA) will begin using the U.S. Clean Air Act to regulate greenhouse gases (GHGs) from some large industrial facilities such as power plants and oil refineries. As we noted in our previous blog post and briefing paper, it's a modest start, but an important step forward nonetheless.

Last Friday, the U.S. regulations cleared one of their final hurdles when the D.C. Court of Appeals denied efforts by industry groups and the state of Texas to put the regulations on hold until legal challenges are resolved. Challengers had argued that the EPA's new rules, requiring major new and expanded industrial facilities to obtain permits that set GHG limits, would result in a "de facto moratorium" on industrial construction. Instead it seems the permits will roll out smoothly, as expected by both the EPA and those actually applying for them. 

Although it's not the final ruling itself (that will be many more months), the court's green light for the regulations to proceed is significant. As Clean Air Act expert David Doniger of the Natural Resources Defense Council put it, "the polluters and science-deniers can say anything they want in press releases and lobbying letters to Congress. Especially these days, when lobbying and politics take place in a fact-free zone. But when you go to court, you have to prove your case. And they've failed."

This means that, unless Congress intervenes during its current "lame duck" session (something that the President would be expected to veto), GHG requirements for U.S. industry will come into effect as expected on January 2, 2011. Meanwhile, by all appearances, industrial facilities in Canada will continue to face no federal GHG constraints whatsoever for several more years.

Requirements neither "voluntary" nor "optional"

Environment Minister John Baird incorrectly labelled the EPA's greenhouse gas regulations "optional" and "voluntary". Photo: courtesy Garth.ca. Last week, Canadian Environment Minister John Baird referred to the U.S. regulations as "a welcome first step." He said, "There will be some voluntary guidelines that will be optional in the United States. We welcome that the American government is beginning to follow Canada's lead and it will have a good partner in Canada."

Fortunately for the sake of Americans' health and welfare, the Clean Air Act is neither "voluntary" nor "optional." Yes, the permitting required by the EPA's new rules is typically done at the state level, but state authorities cannot ignore GHG requirements any more than they can ignore Clean Air Act requirements on other air pollutants, such as sulphur dioxide, nitrous oxides, lead and particulates.

And as for the part about the U.S. following Canada, it sure looks like it's the other way around. Except that we're not actually following at all — we're standing still.

P.J. Partington
P.J. Partington

P.J. Partington was a senior analyst with the Pembina Institute's federal policy group until 2015.


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