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NAHB has joined a large coalition of trade groups in a petition asking the federal Court of Appeals to review the U.S. Environmental Protection Agency's “tailoring rule” on greenhouse gas emissions.
The Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule, finalized on June 3, intends to solve a problem of the EPA’s own making when the agency decided to include green house gas emissions among the pollutants for which Congress set an annual regulatory threshold of 250 tons.
As a result, most schools, hospitals and even some large single-family homes would have had to apply for permits and employ complex technologies to remove or reduce any pollutants from those emissions.
This would also have brought most multifamily, mixed-use and potentially even master-planned community development to a halt.
As a remedy, the Tailoring Rule raised the statutory thresholds to well above 250 tons per year — but the threshold is not a permanent one, according to EPA’s ruling.
Instead, the tailoring rule uses a tiered system of emission thresholds, starting as high as 100,000 tons per year for certain sources and then decreasing that number over a period of years until 2016.
At that time, the EPA said it will issue new regulations to address treatment of smaller sources. Because it’s not clear how this exemption will work, how long it will be in effect or on what scientific basis the EPA set the threshold, NAHB joined the petition.
“While raising the statutory thresholds to these levels effectively eliminates any concerns that residential construction would have PSD permitting obligations, it’s not true relief, because it’s uncertain and it’s temporary,” said Amy Chai, senior staff counsel at NAHB.
Additionally, it’s not clear that the tailoring rule correctly satisfies congressional directives. This makes the EPA particularly vulnerable to legal challenges, Chai pointed out.
“The association is also concerned that the EPA does not provide a permanent exemption for small sources, only a promise to not regulate until 2016, less than six years from today,” she said.
“Finally, the EPA's interpretation of its ability to ignore the statutory thresholds represents a dramatic expansion of its authority which, if upheld, would make it extremely difficult for the courts and even Congress to limit the EPA's actions,” Chai said.
The petition was filed on Aug. 2 in the federal court of appeals for the District of Columbia.
For more information, e-mail Amy Chai, or call her at 800-368-5242 x8232.