From The Christian Science Monitor

By Warren Richey, Staff writer / February 23, 2014

WASHINGTON

For the second time in two months, the US Supreme Court is taking up a case examining whether the Obama administration by-passed Congress in an effort to unilaterally advance its political and policy objectives.

The US Supreme Court will hear arguments on the Obama administration possibly bypassing Congress on the regulation of greenhouse gas emissions.
At issue in Monday’s oral argument is whether the Environmental Protection Agency usurped legislative power reserved to Congress when EPA officials wrote broad new rules regulating the emission of greenhouse gases under the Clean Air Act.

Last month, the high court heard argument in a case testing whether President Obama acted properly when he ignored pro forma sessions of the Senate, declared Congress to be in recess, and then used his recess appointment power to unilaterally appoint three members to the National Labor Relations Board despite Senate objections to his nominees.

President Obama and his administration have also been criticized for postponing statutory requirements and deadlines in the healthcare reform law, the Affordable Care Act, and in exercising “prosecutorial discretion” to selectively enforce US immigration laws.

The legal challenges at the Supreme Court aren’t about the administration’s political priorities; rather they are about the mechanisms the administration has chosen to achieve its priorities and whether those mechanisms comply with constitutional and statutory limits on executive power.

The Clean Air Act was passed in 1970 to reduce and regulate the amount of air pollution from factories and cars. It sought to reduce the release of harmful pollutants like carbon monoxide from car exhaust and sulfur dioxide from fossil-fuel power plants.

In more recent years, environmentalists concerned about global warming pushed to expand the scope of the Clean Air Act to address the release of greenhouse gases that they say are contributing to potentially catastrophic global warming.

The EPA under President Bush resisted these efforts, insisting that the scientific data about global warming was inconclusive. Environmentalists sued to force EPA to take action, and in 2007 the Supreme Court ruled 5 to 4 that greenhouse gases could be regulated under the Clean Air Act if the EPA determined that they posed a danger to human health or welfare.

After President Obama’s election in 2008, his administration jettisoned the old EPA position and moved aggressively to expand the scope of the Clean Air Act to regulate the release of greenhouse gases.

It took this action in phases. The first phase involved using the Clean Air Act to limit greenhouse gas releases from new cars and light trucks.

It is what happened next that forms the basis for the legal challenge now before the high court. After establishing the so-called Tailpipe Rule limiting greenhouse gases from new motor vehicles, the EPA adopted an expansive interpretation of the Clean Air Act to increase its regulatory authority over a wider range of greenhouses gas emitters such as factories and power plants.

Predictably, business and industry groups and some states objected to this expansion of federal power, arguing that Congress did not intend for the Clean Air Act to be used to regulate greenhouse gases.

Such an expensive and potentially economically-disruptive broadening of federal regulatory authority would require clear authorization from Congress, they argued.

The EPA disagreed. Under the agency’s reading of the Clean Air Act, once greenhouse gases are regulated in one part of the Clean Air Act (such as for cars and light trucks), the law requires that greenhouse gases be regulated under other parts of the statute as well.

But there is a problem with this approach. When Congress wrote the Clean Air Act it established thresholds for regulated pollutants to ensure that the EPA concentrated its pollution-fighting efforts on major sources of harmful emissions. Congress determined that the EPA could only regulate those facilities emitting more than 100 tons per year of certain pollutants. In some cases Congress raised the threshold to 250 tons per year.

These thresholds work fine for toxic substances like carbon monoxide from car tailpipes or sulfur dioxide from smokestacks.

The problem with these thresholds when applied to a greenhouse gas (like carbon dioxide) is that greenhouse gases are emitted at much higher volumes than traditional air pollutants. One hundred tons per year of sulfur dioxide is the rough equivalent of 100,000 tons per year of carbon dioxide, experts say.

If the EPA followed the 100-ton and 250-ton limits set by Congress in the Clean Air Act, air pollution regulations of greenhouse gas emissions would extend well beyond the largest factories and power plants that are now targeted for regulation.

At those levels most large buildings in the United States, including hospitals, churches, medium-sized businesses, and even some big homes would require an operating permit from the EPA.

The burden wouldn’t just fall on property and business owners. The government, too, would face hardship administering such a sprawling regulatory regime.

Instead of issuing 280 preventative permits per year, the EPA would have to issue 81,000, according to estimates. Under another section of the Clean Air Act, the EPA’s workload would rise from 14,700 permits a year to 6.1 million permits.

The effort would require an army of bureaucrats and would cost state and federal regulators billions of dollars in new administrative expenses.

Recognizing the absurdity of following the existing 100-ton and 250-ton thresholds set by Congress, the EPA decided to set its own threshold. It established a new limit for greenhouse gases at 100,000 tons per year.

An array of business and industry groups sued, seeking to block the new regulations.

Critics argued that the agency wasn’t enforcing the law, it was rewriting it. It is up to elected representatives in Congress to set such limits, they said. If existing limits in the statute don’t work, the EPA should ask Congress to revise the thresholds in the Clean Air Act.

The Obama administration defended its expansive interpretation of the Clean Air Act, insisting that the EPA had broad discretion to recalibrate the thresholds to facilitate an effective regulation of greenhouse gases.

A federal appeals court agreed with the EPA and upheld the administration’s position. Now the case is before the high court.

The key question before the court is whether the Obama EPA overstepped its authority when it sought to expand greenhouse gas regulations to a wide range of sources of such emissions.

Lawyers challenging the EPA’s regulations say the agency is misreading the Clean Air Act, ignoring key limits written into the law by Congress, and violating the Constitution’s checks and balances.

“This case involves perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the Executive Branch since [President Truman’s failed effort to take over the steel mills],” Shannon Goessling wrote in a brief on behalf of the Southeastern Legal Foundation.

“This action is an unabashed assault on the foundational structure of the Constitution,” Ms. Goessling said.

Solicitor General Donald Verrilli defends the administration’s regulatory approach. EPA officials acted within the parameters of the Clean Air Act when they created the new regulations, he said in his brief.

The agency was acting prudently by deciding to phase-in the threshold for greenhouse gases by applying the new regulations to only the largest emitters, he said. He noted that “absurd results” would have ensued if the EPA had applied and enforced the lower 100-ton and 250-ton thresholds for greenhouse gases.

“Although the Congress that enacted the CAA [Clean Air Act] might not have appreciated the possibility that burning fossil fuels could lead to global warming, Congress drafted the CAA in broad terms to confer the flexibility necessary to forestall obsolescence,” the solicitor general wrote.

The CAA may not be perfectly tailored to dealing with greenhouse gases, Mr. Verrilli conceded, but the EPA’s approach is the best way to implement Congress’s goal of protecting public health and welfare from the effects of air pollution, including adverse effects on weather and climate.

Those challenging the new regulations say that by writing its own thresholds for greenhouse gases the Obama administration is reserving for itself the power to decide when to expand its regulatory authority deeper into the US economy, to smaller businesses, hospitals, churches, and even homes.

Those decisions and judgments should be made by the legislature, not the regulatory agency empowered to enforce those same regulations, critics argue.

The case is comprised of six different legal challenges consolidated for high court review. The lead case is Utility Air Regulatory Group v. EPA (12-1146).

A decision is expected by late June.

Concentrated Animal Feeding Operations and Corresponding SPDES Permit Requirements, Land Application and Associated Storage Facilities, and Composting and Other Class A Organic Waste Processing Facilities

REVISED SUMMARY OF EXPRESS TERMS

Subpart 750-1

The proposed rule making amends provisions of 6 NYCRR Subpart 750-1 to eliminate the requirement that non-discharging Animal Feeding Operations (AFOs) with 200-299 mature dairy cows, milked or dry, obtain ECL CAFO SPDES permit coverage unless the Department designates the facility to be a CAFO. The rule making defines the different types of CAFOs (which previously were not defined in Department regulations) to clarify those facilities subject to regulation under state law. Under the rule making, non-discharging AFOs with 200-299 mature dairy cows are excluded from the definition of “Medium CAFO.” Consequently, these AFOs would not be required to obtain ECL CAFO SPDES permit coverage unless: 1) the facility requests and is granted permit coverage as a Small CAFO or 2) the facility is designated to be a Small CAFO by the Department. The proposed rule making revisions to Subpart 750-1 do not change the federal definition of a Large, Medium or Small CAFO or to limit, in any way, the scope of federal law. Instead, the proposed Subpart 750-1 changes exempt non-discharging AFOs with 200-299 mature dairy cows from the requirement to obtain an ECL CAFO SPDES permit unless designated, while clarifying that although ECL CAFO SPDES permit coverage for these facilities would be discontinued, state law is still more stringent than federal law. This is the case because unlike federal law which generally regulates discharges from point sources, state law regulates the creation of point sources even if there is not a discharge. The specific substantive revisions to 6 NYCRR Subpart 750-1 are summarized below.

Paragraph (i) of Subdivision 750-1.2 (a) is revised to define the term “CAFO” and the different categories of CAFOs for purposes of state law. The term “Large CAFO” is defined in Section 750-1.2 (a) (i) to align with the federal definition set forth in 40 CFR § 122.23 (b) (4). The term “Medium CAFO” is defined to include all AFOs with 200-699 mature dairy cows except that a non-discharging AFO with 200-299 mature dairy cows would not be classified as a CAFO unless the facility elected to seek coverage or was designated a CAFO in which case it would be considered a Small CAFO throughout permit coverage. The proposed definition of Medium CAFO remains more stringent than federal law because the universe of facilities subject to regulation is still greater under state law. Under federal law, all non-discharging AFOs are exempt from being required to obtain a permit regardless of size. The Department’s proposed regulations, however, provide that AFOs with 300 or more mature dairy cows, milked or dry, are considered CAFOs that are required to obtain SPDES permit coverage irrespective of discharge. The rulemaking would align State law more closely to federal law for non-discharging AFOs with 200-299 mature dairy cows because these facilities would no longer required to obtain CAFO SPDES permit coverage. However, consistent with federal law, Paragraph (i) of Subdivision 750-1.2 (a) also makes explicit that the Department may designate an Animal Feeding Operation (AFO), including those AFOs between 200-299 mature dairy cows as a Small CAFO. Under the ECL, if an AFO is designated as a Small CAFO, it is a defined point source that is required to have a SPDES permit even if there is not a discharge. Furthermore, the proposed rule clarifies that the revision does not impact the Department’s existing authority to enter, inspect and collect information. The overall effect of these changes, both the definition and the exception, is to: (1) require permit coverage of all CAFOs that discharge; (2) require permit coverage for dairy CAFOs above the threshold of 300 mature dairy cows irrespective of discharge; and (3) exempt from permit coverage AFOs with 200-299 mature dairy cows, whether milked or dry, without a discharge, unless the facility elects to seek coverage or is designated as a Small CAFO.

Subdivision (c) of Section 750-1.7 has been amended to incorporate 6 NYCRR Part 621 as part of a permit application requirement for CAFOs. This change would specifically apply to those CAFOs required to obtain an ECL CAFO SPDES permit. Paragraph (4) of Subdivision 750-1.21 (b) has also been revised to clarify the Department’s authority to issue a SPDES General Permit for CAFOs that do not discharge, by deleting the word “discharge.” Subdivision 750-1.21 (b) would now explicitly authorize a general permit for discharges or potential discharges from CAFOs.

Subparts 360-4 and 360-5

The proposed rule making makes a number of substantive changes to Subpart 360-4 (Land Application and Associated Storage Facilities) and Subpart 360-5 (Composting and Other Class A Organic Waste Processing Facilities). As discussed in greater detail below, these revisions establish criteria for anaerobic digestion (AD) facilities, provide exemptions from permit and registration requirements for specified activities at farms and CAFOs, and make other changes to these Subparts to promote sound environmental practices and reduce regulatory overlap.

6 NYCRR Section 360-4.2 (a) (1), as currently in effect, states that land application facilities for animal manure and associated bedding material are exempt from the requirements of Subpart 360-4. The proposed rule defines the term “bedding material” for purposes of the exemption to clarify that this exemption applies to common bedding material used at farms (e.g., hay, straw, sawdust, wood shavings, newsprint, sand, and materials approved pursuant to a beneficial use determination). This revision provides clarity but is not a change to the current regulatory program.

6 NYCRR Section 360-4.2 (a) (4) is added to exempt land application facilities for undigested food and fecal material emanating from New York State-owned or licensed fish hatcheries from the requirements of Subpart 360-4 where the waste is applied at or below agronomic rates. This new exemption allows the Department to dispose of fish hatchery waste in a responsible manner. Under current regulation, these activities require registration but this is not needed since they are small scale and are controlled by Department staff.

6 NYCRR Section 360-4.2 (a) (5) is added to create an exemption for a land application facility or manure storage facility on a Part 750 permitted CAFO that also involves food processing waste or other waste if the waste handling is addressed in a CNMP. The exemption does not apply if the waste contains any human fecal matter or if the amount of non-manure waste placed in the storage facility exceeds 50% of the total volume of waste placed in the storage facility on an annual basis. The term “CNMP” is defined in Section 360-4.2 (a) (5) rather than citing NRCS Code NY312 because Code NY312 might not be relied upon in the future. Section 360-1.3 (b) (4) has been revised to delete the reference to Code NY312 and to add Code NY313 as a reference.

6 NYCRR Subdivision 360-4-2(a) has been revised to effectuate the exemptions described above — Sections Section 360-4.2 (a) (4) and (5) — on the effective date of this proposed rulemaking by deregistering those facilities that were previously registered provided that all required annual reports for the facility have been submitted to the department.

6 NYCRR Section 360-4.2 (b) (1) (vii), is revised to clarify the standards that apply to storage facilities. These changes reflect the current manner that these facilities are regulated under Part 360.

6 NYCRR Section 360-5.3 (a) (1) is revised to provide an exemption from Subpart 360-5 for a composting facility that accepts crop residues and to clarify that the exemption from Subpart 360-5 applies to farms.

6 NYCRR Section 360-5.3 (a) (2) is revised to specify that the exemption from Subpart 360-5 applies to either processed or unprocessed yard waste and to indicate that precipitation, surface water, and groundwater that come in contact with yard waste or the resultant compost is not leachate, but must be managed in an acceptable manner to the Department.

6 NYCRR Section 360-5.3 (a) (4) adds an exemption from Subpart 360-5 for certain composting facilities for animal mortalities located on a farm or CAFO and Section 360-5.3 (a) (5) adds an exemption from Subpart 360-5 for AD facilities that accept specified farm waste. Certain activities associated with AD facilities are also exempted, including CAFOs implementing a CNMP for manure, food processing waste, fats, oil, grease, and other wastes without human fecal matter, provided that non-manure waste is less than 50%, by volume, of the waste placed in the AD unit on an annual basis. This section also exempts land application of solids and liquids from AD facilities and other activities relating to dewatered solids.

6 NYCRR Section 360-5.3 (b) (1) (iv) is added to expand the eligibility for registration (rather than requiring a permit) for organic processing facilities for animal mortalities or parts generated from a farm, slaughterhouse, butcher or other generator; and Section 360-5.3 (b) (1) (v) establishes eligibility for registration for composting facilities for dewatered solids from an AD that is subject to registration. Furthermore, Section 360-5.3 (b) has been revised to create eligibility for registration for AD facilities that accept less than 50 tons of waste per day not containing human fecal matter provided that certain operating conditions are met. AD facilities accepting any waste containing human fecal matter or accepting 50 tons or more of waste per day must obtain a permit. Moreover, while land application of solids and liquids generated from an AD facility would require registration, land application that occurs at a Part 750 permitted CAFO is exempt if land application is addressed in a CNMP.

6 NYCRR Section 360-5.5 (b) is revised to exempt AD digestate used on farms from pathogen reduction alternatives under this subdivision. Section 360-5.5 (d) (14) is added to establish specific criteria, including pathogen reduction, for the operation of AD facilities that accept sanitary waste.

6 NYCRR Section 360-5.6 makes certain revisions with respect to source separated organics processing facilities. Specifically, the revisions include permit application requirements, pathogen and vector attraction criteria, pollutant limits and product use for material distributed to the public, and design criteria and operational requirements. Subdivision (f) is added to set forth AD criteria.