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Cynthia A. Faur quoted in article “Melt Down: The Winds of Change Buffet Climate Change Policy”

Inside Counsel

After the Bush administration buried EPA's initial finding that GHGs do pose a public health hazard, the agency finally issued its "endangerment finding" on Dec. 7, 2009, triggering regulation under the CAA. In the meantime, the administration had reached an agreement with automakers on an emissions control standard that would phase in starting with the 2012 model vehicles. In order to meet that deadline, auto companies needed regulations by March 31, 2010.

While there was agreement on so-called mobile source emissions from vehicles, regulation of GHGs from so-called stationary sources such as utility and manufacturing plants was much more contentious. The EPA itself said the complex provisions of the CAA made it an inappropriate tool for carbon controls, adding that it would prefer Congress write new legislation to achieve the same end. Some perceived this as an attempt to blackmail Congress into passing a cap and trade bill. Others said the agency was simply carrying out the Supreme Court's mandate.

In addition, there were practical problems with the March 31 deadline. CAA regulation would require companies to obtain state permits for GHGs to construct or modify facilities, just as they currently do for certain other pollutants.

"There really wasn't sufficient time, and many parties, including people in industry and permitting authorities, were concerned because there were no firm guidelines on how to implement permitting requirements for greenhouse gases," says Cynthia Faur, a partner at Quarles & Brady.

Originally published in Inside Counsel, April 1, 2010