If comprehensive climate legislation is not likely to have much to do with greenhouse gases any time soon, regulation keeps inching forward under existing regulatory authority. Most recently in Washington State, Washington’s Department of Ecology (DOE) published notice of intent to adopt, and has requested comment on a rule establishing the thresholds for greenhouse gas emissions that require an operating permit under Title V of the federal Clean Air Act. DOE implements the federal Clean Air Act under rules adopted at WAC Chapter 173-401.

The proposed rule simply mimics a rule already adopted by EPA. Because the state has accepted implementation responsibility for the Clean Air Act, DOE claims that it is required to adopt the same rule as EPA has adopted. Leaving aside for the moment the question of how the state can be compelled to adopt the identical rule as EPA, and what that means about the concepts of federalism embodied in delegation of implementation of our various federal environmental statutes, DOE’s conclusion that it must adopt the rule would seem to leave little room for public comment to affect the substance of the rule.

The amendment provides that greenhouse gases, which are the aggregate group of six greenhouse gases – carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride – are not subject to regulation unless the greenhouse gas emissions are at a stationary source emitting or having the potential to emit 100,000 tons per year of CO2 equivalent emissions. “Tons per year CO2 equivalent emissions” is calculated by adding the tons per year of each of the named chemicals, times that chemical’s “global warming potential,” as published in the Code of Federal Regulations. Global Warming Potential varies from 1 for carbon dioxide to 23,900 for sulfur hexafluoride, meaning that the global warming potential of sulfur hexafluoride is almost 24,000 times that of carbon dioxide on a pound for pound basis.

DOE claims that adoption of the rule will actually reduce the number of sources of greenhouse gas emissions will have to have operating permits under the Clean Air Act, because in the absence of the rule the threshold for some of the named constituents would be met by more emitters.