2011 Issue

31 uncertainty by not acting, and despite verbal assurances from EPA to the contrary, potentially subjectingall sources above the statutory 100 and 250 tpy thresholds to PSD review and Title V permitting for GHGemissions and risking a lengthy ban on new-source permitting until EPA implements a federal program in thestate. Facedwith these prospects, the Utah Division of Air Quality promptly moved forward to develop state air quality regulations incorporating the increased GHG permitting thresholds of EPA’s tailoring rule, to ensure that vast numbers of smaller sources in Utah do not become subject to GHG regulation and that Utah retains permitting authority for GHG emissions at the higher thresholds, rather than EPA taking over per- mitting authority. At its December 2010 meeting, the Utah Board of AirQuality adopted regulations necessary toadminister theTailoring Rule and issue PSD and Tile V permits for GHG emissions in Utah. AsEPAforges aheadwith thedauntingchallengeof trying to regulate GHG emissions under the CAA, legal challenges could ultimately alter or nullify some or all of its new regulations and further contrib- ute to the mounting uncertainty facing the states and the regulated community. In early December 2010, the United States Court of Appeals for the District of Columbia Circuit refused to order a stay of the EPA’s GHG regulations, including the endangerment finding and the tailoring rule, and thereby allowed the tailoring rule to go into effect on January 2, 2011 while the numerous legal challenges proceed. Ideally, sensible bipartisan action by Congress could solve the regulatory confusionand literally clear theair onGHGregulation. That, of course, may be too much to ask. In summary, regulatingGHGemissions under theCAA is fundamen- tallydifferent fromregulatingeveryother pollutant and is thecauseof significant uncertainty for industry, energy and thebusiness commu- nityasawhole. Between thenewregulations, thenovel approaches that must be taken in future rule-making, and the possibility that the whole process could be nullified or fundamentally changed through legal challenges, the ultimate form of GHG regulation under theCAAor some yet-to-beenacted climate change statute is anyone’s guess. This article is designed to provide general information only. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel. The authors are attorneys with the law firm of Van Cott, Bagley, Cornwall & McCarthy, P.C. and members of the Firm’s Natural Resources & Environmental Law Practice Group. They can be reached at 801.532.3333. Mr. Joseph A. Cannon is a recent Of Counsel addition to Van Cott. He has previously served as the Associate Administrator for the Office of Policy and Resource Management, U.S. Environmental Protection Agency, with responsibility for reviewing all EPA regulations, which makes his contribution to this article particularly insightful. With EPA he also served as Assistant Administrator for Air and Radiation. His other legal experience includes working as a partner in the Washington D.C. office of Pillsbury Winthrop Shaw Pittman, LLP, focusing his practice on environmental, natural resources, energy and administrative law. While there, Mr. Cannon was the co-leader of the Public Policy Practice team. He also has significant experience in the private sector, as former CEO and Chairman of Geneva Steel. Van Cott’s Natural Resources & Environmental Law Practice Group represents individual and corporate clients in all phases of the exploration, acquisition, development and usage of natural resources throughout Utah and the Intermountain West. Clients include major oil and gas companies, pipelines, alternative fuel producers, coal and producers of hard rock minerals, limestone, potash and phosphate. Van Cott has a strong background and an in-depth understanding of the issues in balancing the applications of natural resources and environmental law. Practice Group members are: Joseph A. Cannon, Joshua B. Cannon, Thomas W. Clawson, Kim S Colton, Mary Jane E. Galvin-Wagg, Dale F. Gardiner, H. Michael Keller (Chair), Alex B. Leeman, Scott M. Lilja, Matthew F. McNulty, III, Sam Meziani, Seth Moth, Richard H. Reeve, Robert H. Scott, John A. Snow, William A. Street, Florence M. Vincent, Loren E. Weiss and Gregory P. Williams. Energy, Natural Resources Environmental Law 801.532.3333 |vancott.com Because it Matters ® © Van Cott, Bagley, Cornwall & McCarthy, P.C. 2011 Cannon Keller Scott