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EPA’s Grasping Reach

June 24, 2014

In establishing the Best System of Emission Reduction (BSER) for cutting CO2 emissions 30%, the EPA has reached beyond its usual, and possibly legal, grasp.

It is this potential overreach that will be the basis for some of the lawsuits that are bound to come from this rule making.

It should also be of great concern to Americans, as it could, if upheld by the courts, provide the basis for powerful intrusions into the liberty of all Americans, including controlling their behavior.

Until now, the EPA has limited itself to specific technologies or practices to reduce pollution from plants.

Now, the EPA has required the inclusion of other, beyond the fence, installations as part of the BSER.

For example, when the EPA previously issued regulations to control NOx from power plants, it restricted the ruling to action at the power plants. The new EPA ruling to cut CO2 emissions 30%, requires including actions at other, beyond the fence, installations, (see building blocks 2 & 3 below) as well as actions not related to any installation. (see building block 4 below)

Requiring “beyond the fence” installations and non-installations will be the basis for some lawsuits, but the concept is also all pervasive … and should scare Americans.

For example:

Why not issue a regulation controlling CO2 from automobiles, using the same BSER concept?

The building blocks for such a regulation might be:

  • Require increasing the efficiency of cars to reduce gasoline usage, including using electric vehicles.
  • Require people to use public transportation to shift CO2 emissions from cars to more efficient rapid transit.
  • Require people to substitute the use of bicycles and mopeds, i.e., low carbon transportation, for automobiles.
  • Require people to work at home to avoid transportation and the emitting of CO2 altogether.

In parallel with the EPA’s BSER, each of these four building blocks have been proven viable, and allowing the states the flexibility to craft state plans using these building blocks provides the flexibility that is “fully consistent with Federalism”.

Each of these four building blocks meets the requirements the EPA has established for the BSER for cutting CO2 emissions 30%. The quote about Federalism is from the EPA’s proposed regulation.

Such a regulation affecting automobiles would restrict people’s freedom to work where they want, and to travel how they want.

The concept of the BSER, as proposed by the EPA for its regulations cutting CO2 emissions 30%, could be broadly applied, with applications that drastically intrude on people’s freedom.

The concept could be applied to such activities as education, travel for vacations, home and yard maintenance, operating a store, etc. (The original Waxman-Markey cap & trade bill envisioned imposing regulations on lawnmowers.)

Page 10 (partial) of the Waxman - Markey, cap & trade Bill.

Page 10 (partial) of the Waxman – Markey, cap & trade Bill.

It’s not difficult to apply the same BSER construct to these, and other additional applications

There was a proposal in the UK a few years ago to issue cards, such as debit cards, to everyone, where the card would include people’s CO2 allowance. Deductions would be made from the card when buying gasoline, or flying, etc., so that people’s use of CO2 would be restricted. When individuals used up their allowance, they wouldn’t be able to buy gasoline, etc.

It’s clear we are heading toward a similar regimen, with the EPA’s attempt to broadly construct its BSER.

Lawyers may laugh at this clumsy analogy, but Americans will understand why the EPA is reaching too far with its proposal to cut CO2 emissions 30% by 2030.


The four building blocks of the EPA’s BSER for cutting CO2 emissions 30% are:

  1. Reducing the carbon intensity of generation at individual affected EGUs [Electric Generating Unit] through heat rate improvements.
  2. Reducing emissions from the most carbon-intensive affected EGUs in the amount that results from substituting generation at those EGUs with generation from less carbon-intensive affected EGUs (including NGCC units under construction).
  3. Reducing emissions from affected EGUs in the amount that results from substituting generation at those EGUs with expanded low-or zero-carbon generation.
  4. Reducing emissions from affected EGUs in the amount that results from the use of demand-side energy efficiency that reduces the amount of generation required.

* * * * * *

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