Last month, Warming Law reported that the EPA’s Environmental Appeals Board (EAB), which describes itself as “the final Agency decisionmaker on administrative appeals under all major environmental statutes that the Agency administers,” issued a ruling that EPA’s Region 8 had improperly refused to require limits on CO₂ emissions in a permit issued for the proposed “Bonanza” coal-fired power plant in southern Utah.

In response to a petition filed in October 2007 by the Sierra Club, the EAB remanded the Bonanza permit back to Region 8 and ordered the Region to “reconsider whether or not to impose a CO₂ BACT limit in the Permit.” In doing so, the Board added, “the Region shall develop an adequate record for its decision, including reopening the record for public comment.”

Late yesterday, outgoing EPA Administrator Stephen Johnson responded to this ruling with a 20-page memo to EPA regional administrators interpreting relevant statutory language in a manner that does not require the imposition of limits on CO₂ emissions in a Prevention of Significant Deterioration (PSD) permit for “major emitting facilities,” including coal-fired power plants. Under the Clean Air Act, PSD permits must impose BACT emissions limits on each pollutant “subject to regulation” under the Act. In the Bonanza proceeding, the Sierra Club argued that the phrase “subject to regulation” encompassed CO₂, because CO₂ is subject to monitoring and reporting requirements.  However, the EPA argued that the phrase is limited to pollutants subject to regulations “that require actual control of emissions” of those pollutants. In its ruling, the Board concluded that the phrase “subject to regulation” is ambiguous.

Johnson’s Dec. 18 memo attempts to address this ambiguity, interpreting the phrase “subject to regulation” to “exclude pollutants for which EPA regulations only require monitoring or reporting but to include each pollutant subject to either a provision in the Clean Air Act or regulation adopted by the EPA under the Clean Air Act that requires actual control of emissions of that pollutant.” Johnson claims that his memo was “not intended to supersede the Board’s decision” but rather to “build on it” and relieve individual EPA regional administrators “of the burden of resolving an issue which affects the entire national permitting program.”

Johnson’s memo has triggered a firestorm of frustration among environmentalists, as well as the following sharp response from Rep. Ed Markey (D-MA), Chairman of the House Select Committee on Energy Independence and Global Warming:

Instead of being caretakers for the next administration and the planet, President Bush and the EPA are making sure that polluters are getting their needs taken care of before January 20.… This new, illegal ruling, along with many other midnight rulemakings, continues a stunning pattern of disregard for the law, the planet, and for the change Americans say they want in our energy and environmental policies.

As we head into the New Year, it seems certain that the long-running Bonanza controversy will not end with Johnson’s memo. Stay tuned.