Comments of Southern Company on EPA’s Advance Notice of Proposed 

Rulemaking “Regulating Greenhouse Gas Emissions Under the Clean Air Act”

Docket ID No. EPA–HQ–OAR–2008–0318 

On July 30, 2008, EPA issued an advance notice of proposed rulemaking (ANPR) 

seeking to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) 73 Fed. 

Reg. 44354 (2008). The following comments are submitted by Southern Company, one 

of the largest investor-owned electric utility companies.

 Southern Company commends EPA for exploring the impacts of GHG regulation 

on the United States. Southern Company believes the CAA is ill-suited for such broadbased, multi-sectoral, economic regulation. Rather, the appropriate focus should be on a 

legislative program that fairly addresses costs, risks, and technology needs across the 

economic spectrum. 

Problems with Regulation of Greenhouse Gases under the Clean Air Act

In the ANPR, EPA emphasizes the characteristics that separate GHGs from 

traditional air pollutants, such as their longer atmospheric lifetimes and the fact that GHG 

emissions mix uniformly throughout the global atmosphere. Southern Company believes 

that these characteristics, among other factors, render the CAA regulatory programs 

inappropriate and ineffective for regulating GHGs. Air pollutants currently regulated 

under the CAA tend to have local (a few kilometers) or regional (hundred to thousands of 

kilometers) impacts and relatively short atmospheric lifetimes (days to months). EPA 

states, that “historically, this has meant that EPA could identify and differentiate between 

affected and unaffected areas and devise control strategies appropriate for each area.” 

This is not the case with GHGs. Control strategies imposed only on the United States, 

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while clearly impacting the United States economically, are highly unlikely to have any 

substantial impact on global GHG concentrations.1

Beyond the fact that the Clean Air Act is ill-suited for regulation of GHGs, EPA’s 

own analysis of key policy and economic considerations shows that broad-based 

legislative programs would be more cost-effective and fair than CAA regulation, which 

tends to be more sectoral in nature. EPA further finds that establishing market-based 

mechanisms is the most cost-effective means to reduce GHG emissions, and we agree. 

However, the structure of the Clean Air Act may dictate command-and-control 

requirements be layered on top of a market-based program, undercutting its cost savings. 

Market-based mechanisms also involve the allocation of allowances or auction revenues. 

Southern Company agrees with the EPA that this action may be very challenging for an 

executive branch agency to design without clear legislative authority because of the high 

monetary stakes and divergent stakeholder views on how to distribute the allowances or 

revenues. 

Accelerating the flight of industry to other countries is another concern associated 

with regulating GHGs under the CAA. It is unlikely that other countries would enact 

comparable requirements causing the accelerated flight of industry and the inevitable loss 

of significant American jobs. Putting the United States at an economic disadvantage 

without the ability to guarantee global GHG reductions via CAA regulation is 

unacceptable. 

Overall, it is clear that CAA regulation of GHGs would be environmentally and 

economically ineffective. However, EPA does rightly state that all policy and economic 

considerations associated with each potential regulatory approach need to be thoroughly 

 

1

 “EPA Analysis of Bingaman-Specter Request on Global CO2 Concentrations,” EPA, 1 October 2007. 

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considered prior to reaching any conclusions. Southern Company agrees that EPA should 

evaluate the CAA options in light of the following considerations: 

− effectiveness of health and environmental risk reductions; 

− certainty and transparency of results; 

− cost-effectiveness and economic efficiency considerations; 

− equity considerations (i.e. distributional effects); 

− policy flexibility over time; 

− incentives for innovation and technology development; 

− competitiveness/emissions shifts; 

− administrative feasibility; 

− enforceability; 

− unintended consequences; and, 

− suitability of tool for the job. 

It is believed by Southern Company that an adequate evaluation by EPA will 

prove the CAA a completely inappropriate and ineffective tool for regulating GHGs. 

Endangerment Analysis and Issues

EPA appears to assume from the outset in Section V of the ANPR that it must 

make a finding regarding endangerment with respect to new motor vehicle emissions of 

CO2 and certain other GHGs. However, the Supreme Court ruling in Massachusetts v. 

EPA, 127 S.Ct. 1438 (2007), imposes no such requirement: “We need not and do not 

reach the question whether on remand EPA must make an endangerment finding, or 

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whether policy concerns can inform EPA’s action in the event it makes such a finding.” 

Id. at 1463.

Among an evaluation of numerous policy concerns, Southern Company believes 

EPA needs to adequately research the broad effects of regulation of motor vehicle GHG 

emissions. Southern Company understands the complexities that EPA continuously notes 

of estimating, quantifying, and projecting past, current, and future costs and benefits of 

GHGs and potential regulation. However, any regulation of motor vehicle GHG 

emissions under section 202 could trigger Prevention of Significant Deterioration (PSD) 

regulation of GHGs. All sources that emit or have the potential to emit 250 tons per year 

(tpy) of a regulated New Source Review (NSR) pollutant are subjected to PSD regulation. 

PSD regulation of GHGs could have profoundly damaging effects on the United States’ 

economy, and especially the Southeast due to our continuing growth, that in turn could 

harm public health or welfare. An accurate evaluation of the impact on the economy, as 

well as the United States’ public health and welfare, of motor vehicle GHG regulation 

needs to be completed. 

Clean Air Act Authorities

 The following paragraphs present Southern Company’s comments on EPA’s 

consideration of various Clean Air Act authorities for regulating GHGs. 

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National Ambient Air Quality Standards

 The ANPR relies on the CAA’s definition of “air pollutant,” and sections 108 and 

109 focus on the effect of an air pollutant in the ambient air. The ambient air is that air to 

which the general public has access. Current scientific theory hypothesizes that 

anthropogenic global warming results from the interaction of outgoing infrared radiation 

with GHGs in the upper atmosphere. EPA needs to consider how to differentiate the 

effects of GHGs in the ambient air from those in the upper atmosphere. In Section V, 

EPA states, “current and future projected levels of ambient concentrations of the six 

GHGs are not expected to cause any direct adverse health effects, such as respiratory or 

toxic effects, which would occur as a result of elevated GHG concentrations themselves 

rather than through the effects of climate change.” Southern Company agrees with EPA’s 

statement and concludes that the National Ambient Air Quality Standards (NAAQS) are 

an invalid and inappropriate CAA authority to control GHGs. 

In promulgating a NAAQS for GHGs, because GHG concentrations are not 

localized, EPA would need to identify the entire country as in attainment or 

nonattainment. This would create an overwhelming burden on EPA and, in turn, on state 

governments. The increased burden placed on states, due to State Implementation Plan 

(SIP) requirements, may not be overcome. SIPs need to demonstrate compliance and 

address any noncompliance issues. The global nature of GHGs would render this action 

impossible by states, with SIP requirements also likely creating a national patchwork of 

regulations. Also, the 10-year maximum timeline for meeting primary attainment is 

unachievable for GHGs, especially due to rising GHG emissions from developing 

countries. If states do not meet primary attainment within the maximum 10-year 

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timeframe, which is highly likely, results would include restrictions on highway funding, 

on approvals of transportation projects, and programs related to transportation 

conformity. EPA states, “at the outset, it would appear to be an inescapable conclusion 

that the maximum 10-year horizon for attaining the primary NAAQS would be ill-suited 

to GHGs.” Clearly, the NAAQS programs under the Clean Air Act are completely illsuited for regulation of GHGs. 

 EPA invites comments on the extent to which it would be appropriate to use the 

most recent IPCC reports, including the chapters focusing on North America, and the 

U.S. government Climate Change Science Program (CCSP) synthesis reports as scientific 

assessments that could serve as an important source or as the primary basis for the 

Agency’s issuance of air quality criteria. The recent IPCC and CCSP reports do not, by 

any means, qualify as appropriate for use as “criteria documents,” or as they have 

recently been termed, “integrated science assessments.” The focus of the IPCC is global 

effects and emissions – not at all the kind of assessment of emissions and effects within 

the United States that is the purpose of a criteria document. 

Southern Company agrees with EPA that pollutants “already subject to NAAQS 

are typically local and/or regional in nature, so the standards are designed to limit 

ambient concentrations of pollutants associated with emissions typically originating in 

and affecting various parts of the United States,” again, not a characteristic of GHGs. 

Further, determining the geographical extent of potential human health and welfare 

effects, if present, associated with GHGs should be taken into consideration in 

determining what level and other elements of a standard would provide the appropriate 

protection. This would be very difficult and resource-consuming for GHGs. Expanding 

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NAAQS authority to encompass the global nature of GHGs is not the intent of the CAA. 

Again, NAAQS are ill-suited to meet the requirements needed to effectively control 

GHGs. 

EPA lists key milestones and implementation timelines if GHGs were regulated 

as a NAAQS pollutant. Southern Company agrees with EPA that it would be difficult to 

meet NAAQS milestones and timelines, further uncovering the inappropriateness of the 

CAA for GHG regulation. 

Clearly, without global control of GHGs, atmospheric concentrations of GHGs 

will not decrease. Global increases in GHG emissions will occur in spite of CAA 

regulation of GHGs in the United States. 

The magnitude of this global issue can be illustrated by considering that China 

alone adds CO2 emissions equal to four times those of the state of Alabama to its 

emissions total each and every year. Thus, a complete cessation of all CO2 emissions in 

the state of Alabama would be completely subsumed by Chinese emissions growth in 

about 84 days.

2

 It is imperative to have global control of GHGs if it is decided that the 

goal is to stabilize or reduce atmospheric concentrations of GHGs. 

 

Standards of Performance for New and Existing Sources

 Southern Company does not believe that the use of EPA’s authority to set New 

Source Performance Standards (NSPS) under section 111 of the CAA is an appropriate 

mechanism for regulating GHGs. Using section 111 would require lengthy and 

complicated consideration of source-category-specific factors focusing on limited 

 

2

 “Observed Climate Change and the Negligible Global Effect of Greenhouse-gas Emission Limits in the 

State of Alabama,” Science and Public Policy Institute (SPPI), 2008. 

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available technologies. Furthermore, section 111 cannot be used to regulate mobile 

sources. 

National Emission Standards for Hazardous Air Pollutants

Section 112 allows the Administrator to add a pollutant to the list of Hazardous 

Air Pollutants (HAPs) if the pollutant presents, or may present, “through inhalation or 

other routes of exposure, a threat of adverse human health effects (including, but not 

limited to, substances which are known to be, or may reasonably be anticipated to be, 

carcinogenic, mutagenic, terotagenic, neurotoxic, which cause reproductive dysfunction, 

or which are acutely or chronically toxic) or adverse environmental effects whether 

through ambient concentrations, bioaccumulation, deposition, or otherwise . . . .” CAA § 

112(b)(2). GHGs do not pose a direct threat to human health through such exposure, 

voiding section 112 from regulating GHGs. 

Furthermore, in section 112 a major source is defined as a source that emits or has 

the potential to emit 10 tpy or more of any HAP or 25 tpy of any combination of HAPs. 

GHG regulation under section 112 would drastically increase the number of source 

categories covered by EPA. The need to create, monitor, and regulate national emission 

standards for GHGs for each major source category would generate an overwhelming 

administrative burden for the Agency. 

Preconstruction Permits Under the New Source Review Program

 Under the NSR program, the CAA requires the owners and operators of large 

stationary sources of air pollution to obtain construction permits prior to building or 

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modifying such a facility. The program is divided into the PSD and nonattainment NSR 

(NNSR). The drastic increase in the NSR program due to the myriad of new sources that 

would be brought into the program through possibly any form of GHG regulation under 

the CAA is an element that EPA and state agencies cannot effectively handle. According 

to the United States Chamber of Commerce, from the commercial sector alone there 

would be an estimated 1 million new regulated stationary sources including “over onefourth of all school buildings, over two-thirds of health care facilities, one-third of office 

buildings, half of those in lodging, and one-fifth of food services.” 

 A possibly even bigger problem would be that under a GHG NAAQS, the 

possibility exists that the entire country could be deemed to be in nonattainment status, 

which would trigger the nonattainment NSR permitting program nationally. Economic 

ramifications of this program for the nation would be disastrous, requiring all new 

emissions to be offset and application of Lowest Achievable Emission Rate (LAER) 

standards for all new sources. 

Title V Operating Permits Program

 EPA states that Title V operating permits would be required if regulation of 

GHGs occurs under any of the approaches mentioned in the ANPR. EPA estimates that 

currently 15,000-16,000 Title V permits exists; this would increase to about 550,000 if 

GHGs were regulated under the CAA. The administrative burden produced by the drastic 

increases in the number of Title V operating permits is likely to be unreasonable for EPA. 

EPA confirms that these numbers could even increase if GHG were regulated under 

section 112 authority, due to the lower threshold limits. Because of the huge number of 

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Title V permits, it is likely that EPA couldn’t meet key milestones and deadlines required 

by the Act, such as timely processing of permit applications. 

The United States Chamber also noted that Title V permits could have severe 

impacts on the economy because, under the Act, such permits are subject to citizen suits. 

It is possible that every Title V permit could be challenged by citizen groups, which 

would slow down, if not stop, crucial economic activities. 

 Regarding EPA’s question as to whether relief should be given to smaller sources 

with respect to Title V fees, Southern Company believes that any relief given for fees 

should apply to all sources regardless of size. Large sources should not have to bear the 

permitting cost for smaller sources. 

 It is clear that Title V permitting burdens, fees, and timeline issues make the CAA 

ill-suited for GHG regulation. The CAA creates more problems and issues than it solves 

and transforms an already disheveled program into a regulatory labyrinth. 

Draft Technical Support Document – Endangerment Analysis for Greenhouse Gas 

Emissions Under the Clean Air Act

Southern Company has several questions and concerns about EPA’s Draft 

Technical Support Document (TSD) for Endangerment Analysis for Greenhouse Gas 

Emissions Under the Clean Air Act. The TSD primarily references IPCC and CCSP 

documents. Generally, EPA relies almost exclusively on the IPCC Fourth Assessment 

Report. However, this summary report, as stated before, focuses on global emissions, 

atmospheric concentrations, and presumed impacts – not on those related to the United 

States. EPA states that it relies primarily on IPCC chapters addressing the United States, 

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but acknowledges that this information is not as detailed as certain other sources of data. 

When the United States is studied by the IPCC, it is at a macro-level that includes the 

North American region as a whole. Because EPA only has authority to regulate U.S. 

emissions, any finding of endangerment would have to rest on a determination of whether 

U.S. emissions by themselves cause endangerment. 

The TSD may also overstate the likelihood of endangerment. The TSD does not 

address the potential for adaptation or potential to reduce GHGs through mitigation 

measures. EPA provides unrealistic approaches by incorporating emission scenarios that 

assume no new GHG mitigation policies in either the United States or the rest of the 

world and IPCC scenarios that do not take into account the implementation of the Kyoto 

Protocol. 

Conclusions

 In conclusion, Southern Company agrees with EPA Administrator Johnson and 

several Federal agencies that a regulatory program under the Clean Air Act is singularly 

ill-suited for regulation of greenhouse gases. 

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