In April 2007, the U.S. Supreme Court ruled the Environmental
Protection Agency (EPA) can regulate greenhouse gases under the
Clean Air Act (CAA), giving EPA authority to determine whether
emissions endanger public health. The 5-4 decision was surprising
because the CAA did not include greenhouse gas regulation when it
was written in the 1970s, and it requires EPA to regulate entities
emitting 250 tons of hazardous pollutants each year. This threshold
was set for pollutants with particulate matter and is extremely low
for gases that include carbon dioxide and are measured in thousands
Nonetheless, on Dec. 7, 2009, EPA issued an "endangerment
finding" for greenhouse gases and announced a rule will go into
effect Jan. 1, 2011, starting with power companies and factories,
which undoubtedly will include construction material
To obviate the 250-ton statutory threshold, EPA issued what it
calls a "tailoring" rule to regulate only sources emitting more
than 100,000 tons of greenhouse gases. However, the tailoring
concept is highly unusual, and many experts believe EPA cannot
simply ignore the CAA's explicit statutory language—they
believe EPA must regulate all entities that emit more than
250 tons annually.
Even with the tailoring rule, construction material
manufacturers will be regulated under the CAA's Prevention of
Significant Deterioration, which could increase material costs for
the construction industry. Furthermore, other regulatory programs
triggered by the finding could halt...
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