EPA Tailoring Rule Implementation to be Delayed Until 2011

Author:Mr Eric Rothenberg and John Rousakis
Profession:O'Melveny & Myers LLP
 
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On February 22, 2010, USEPA announced that it would delay the issuance of greenhouse gas ("GHG") regulations until 2011.  [please see our February 24, 2010 Client Alert].  Consistent with that announcement, USEPA this week also provided notice that it would not issue its GHG "tailoring rule" (the "Rule") on March 31, as originally proposed.  As discussed in our October 8, 2009 Client Alert, the Rule was intended to raise the threshold for applicability of Clean Air Act ("CAA") GHG requirements for stationary sources — particularly those under the Prevention of Significant Deterioration ("PSD") program — which would go into effect once the agency finalized its proposal to impose GHG limits on cars and light trucks.  Instead of finalizing the Rule on March 31, USEPA plans to issue a rule setting the timing for applying GHG limits to new and modified stationary sources.  That rule will delay the application of PSD requirements until 2011. 

USEPA's efforts to regulate GHGs from mobile and stationary sources have been under intense scrutiny, with a number of industry groups filing challenges in the US Court of Appeals for the D.C. Circuit to the Agency's underlying GHG "endangerment finding."  Most recently, US Senator Jay Rockefeller (D. W.Va.) introduced a bill that would formally postpone the issuance of stationary source GHG regulations by two years (until 2012).  By delaying the issuance of the Rule, USEPA will have a better opportunity to address the extensive comments...

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