With only weeks remaining as Environmental Protection Agency’s (EPA) Administrator, Stephen L. Johnson issued a memorandum indicating that CO2 is not a regulated pollutant in the approval process for power plants.
Johnson’s interpretation of “regulated pollutant” was not opened to a public comment process, but he concluded by saying,
The interpretation adopted in this memorandum is based on a reasonable reading of the terms of the regulation, is consistent with past Agency practice, and is not precluded by the Clean Air Act. Furthermore . . . it is not sound policy to trigger mandatory emissions limitation under the [permit] program on the basis of rules designed for information gathering.
The memo was directed to all EPA Regional offices as a direct response to the EPA’s Environmental Appeals Board’s (EAB) ruling in the Deseret Power Electric Cooperative case. The EAB had found that CO2 could be "regulated" under the Clean Air Act and called for the regional office to either conduct a BACT analysis or justify why one was not required.
Johnson's decision remains for now, but it may fail in court and could be overturned by Lisa Jackson when she takes Johnson’s place as EPA Administrator under President-elect Obama’s administration.