The Bush administration is trying to make sure in its final days that federal air pollution regulations will not be used to control the gases blamed for global warming.
In a memorandum sent Thursday, outgoing Environmental Protection Agency Administrator Stephen Johnson sets an agency-wide policy prohibiting controls on carbon dioxide emissions from being included in air pollution permits for coal-fired power plants and other facilities.
The decision could give the agency a legal basis for issuing permits that increase global warming pollution until the incoming Obama administration can change it, a process that would require a lengthy rulemaking process.
"The current concerns over global climate change should not drive EPA into adopting an unworkable policy of requiring emissions controls," Johnson writes. And while the administrator acknowledged public interest in the issue, he writes that "administrative agencies are authorized to issue interpretations of this nature that clarify their regulations without completing a public comment process."
The White House has repeatedly said that the Clean Air Act should not be used to regulate carbon dioxide or other greenhouse gases, even though an April 2007 Supreme Court decision determined that the EPA could do so under the law. But that hasn't stopped environmentalists from trying.
The Thursday memo from Johnson was an attempt to clarify the agency's position after an appeals board in November rejected a federal permit for a Utah power plant putting the fate of scores of coal-burning power plants and other industrial facilities in limbo.
In that case, the judges said the EPA did not make a strong enough case for not requiring controls on carbon dioxide, the leading pollutant linked to global warming. Environmentalists had challenged the permit saying that law makes clear that greenhouse gas emissions can be controlled.
'Unspoken policy'
Environmentalists on Thursday said the EPA's memo would allow power plants to be approved that increase greenhouse gas emissions. They also said the ruling would tie the hands of President-elect Barack Obama, who has said he wants heat-trapping gases to be regulated.
"What you have is a midnight declaration that is designed by edict to rewrite EPA's regulations to say categorically carbon dioxide can never be considered in permitting a new coal plant," said Vickie Patton, an attorney with the Environmental Defense Fund.
But EPA spokesman Jonathan Shradar said the opinion simply codifies existing agency policy.
"It had been the unspoken policy of the agency," Shradar said. "All it does is put into policy what the agency has done for 30 years."
Representatives of the electricity generators said Thursday that the EPA once again made the right choice. Scott Segal, director of the Electric Reliability Council, an association of power companies, said if agency determined Clean Air Act could be used to place limits on carbon dioxide, many other sources would have to get permits under the law.
Segal said that if the EPA had made a different interpretation the results would have been catastrophic for the economy and the environment.
