Testimony of

Howard J. Feldman

American Petroleum Institute
Act is an effective mechanism to address the emissions of greenhouse gases (GHGs). As we indicated recently

before the D.C. Circuit, we question EPA’s legal authority to modify the statutory thresholds in the Clean Air Act

in an effort to regulate GHG emissions when alternative interpretations are available that would avoid the need

to rewrite the statute in the first instance.. Second, if the D.C. Circuit ultimately upholds the tailoring rule, and

EPA remains wedded to this approach, then EPA should consider raising the tailoring thresholds. Third, andagain, only if the Court upholds EPA’s regulatory approach and EPA is determined to continue its regulatory

course, EPA should establish presumptive BACT and determine that carbon capture and sequestration need

not be considered, in order to save resources in the permit process.

Regarding the first point, API believes that the risk from climate change is a serious issue. Should

policymakers conclude that a GHG control program is necessary, that would be best pursued with legislation

dedicated to the problem, rather than through the existing structure of the Clean Air Act, which clearly does not

provide an effective mechanism to address greenhouse gas emissions. Unless the court definitively upholds

EPA’s full suite GHG regulations, EPA should not proceed with this rule or the greenhouse gas regulationsunder consideration. EPA can avoid adding further complexity and uncertainty to its already complex GHG

regulatory regime by awaiting the Court’s imminent decision and reconciling any future rules to the relief

ordered by the courts.

Second, if the judicial process upholds EPAs approach to GHG regulation and, particularly, the tailoring rule,

EPA should either leave the tailoring thresholds unchanged or even raise them. Quoting from the EPA factsheet, ‘After evaluating the progress of GHG permitting so far, EPA believes that state permitting authorities

have not had sufficient time to develop necessary program infrastructure, and to increase their GHG permitting

expertise, to make it administratively feasible to apply PSD and title V permitting requirements to smaller

sources.” It is apparent that EPA’s approach to GHGs is adversely impacting development. Attachment C of

P a g e I 1 Feldman testimony

March 20, 2012
discrepancy between a one year projection of activity and the actual permit activity to date cannot be due

simply as some have alleged to the economy.” We hear about permit delays and we believe that the GHG

PSD requirements have caused businesses to delay investment and expansions, almost certainly with a

resulting adverse impact on jobs.

Given the current status of the GHG PSD program, EPA’s acknowledgment that state permitting authorities

have not had sufficient time to develop necessary program infrastructure demonstrates that there is no basis to

lower the tailoring thresholds and create even more taxing demands on limited infrastructure, assuming the

courts uphold the concept at all. Instead, we suggest that EPA consider raising the thresholds to perhaps

250,000 tons per year. That would be more consistent with sources which are subject to the thresholds for

criteria pollutants.

Third, please also note that API has supported use of a presumptive BACT at the applicant’s discretion and

that EPA should issue a determination that carbon capture and sequestration need not be considered in BACT

analyses at this time. Both of these positions would further the goal of streamlining for both applicants and

regulators by saving time and resources with no environmental cost.In our written comments we will address these issues in greater depth and EPA’s proposal for plant-wide

applicability limitations and regulatory provisions to allow for “synthetic minor” permits for GHGs under the

federal PSD program. Thank you.

a g e I 2 Feldman testimony

March 20, 2012