Skip to main content
Clouds in the sky

Two key ways EPA can fast track air permitting reforms to advance cleaner, low-carbon technologies

July 29, 2024 Work Area: Power Plants

In the last year, the Environmental Protection Agency (EPA) finalized important performance standards for greenhouse gas (GHG) emissions from the oil and gas industry and some parts of the power sector. These rules are essential to decarbonize the U.S. economy and meet national climate goals. Although more work remains for these sectors, it’s critical that EPA lay the groundwork now for the rest of the industrial sources that make up 23% of annual U.S. GHG emissions. There are over 2,000 facilities that comprise the sector across dozens of production processes making eliminating their emissions a big and complex challenge. The good news is that there are an increasing number of economically and technologically feasible pathways forward.  

Along with these advancements in clean technologies, the Inflation Reduction Act (IRA) and Infrastructure Investment and Jobs Act (IIJA) have provided historic levels of funding to support innovation in clean industrial technologies, creating opportunities to move toward zero-emission technologies for heat, feedstocks, and other industrial processes. But short of developing performance standards industry-by-industry, a task that while essential, takes considerable time, EPA can take steps now that can move these lower emitting options forward.  

What can EPA do to enable cleaner industrial processes? 

There are two changes EPA can make relatively quickly that can advance deployment of lower carbon options, which also tend to produce lower levels of conventional pollutants. Each would affect all industries which are advancing new sources, or modifying existing sources, that must receive an air permit.  

  1. EPA should pull back the “redefining the source” policy

As other advocacy organizations have argued recently, EPA can and should revisit and pull back its extra-statutory “redefining the source” policy, which significantly limits which lower emitting processes and pollution control options can be considered in permitting new and modified sources. 

When a major source of conventional air pollution seeks an air permit (whether a new or modified existing source), the applicant must put forward what it claims is the “best available control technology” (BACT) for greenhouse gas emissions. The permit agency then evaluates the submission in setting the required pollution control for greenhouse gases for the facility. The agency’s process for determining the BACT dates back to a permitting manual issued by EPA in draft form in 1990.  

But the clean technology forcing goals of the Clean Air Act have been hobbled for decades by the “redefining the source” policy, which is a non-binding but nevertheless entrenched practice stemming from this decades-old manual and subsequent case law, with no grounding in the text of the statute itself. Under this EPA-driven policy, the list of pollutant-controlling options that must be evaluated is significantly limited. Before any of the statutory factors (energy, environmental, and economic impacts and costs) are considered, the list of options is narrowed to those that would not “redefine” the applicant’s intention for its project. In practice, this has translated to a permitting process in which innovations like hybrid designs, integrated renewables, and other zero-emissions technologies have been excluded from evaluation even before considerations of whether they are environmentally and economically beneficial – stifling innovation and limiting climate and public health benefits. 

For example, if the applicant’s original plan calls for the use of a fossil fuel boiler to provide industrial process heat, the “redefining the source” policy could prevent consideration of the alternate use of an electrified boiler employing a heat pump or other technology as the BACT. Since non-direct emitting technologies like electrified boilers or novel thermal batteries could be considered a different type of source, the applicant and the permitting authority would be able to ignore the benefits of using those options for reducing GHG and conventional pollutant emissions compared to the original proposal. 

What must EPA do to change this situation? The policy has evolved over many federal administrations, and courts and tribunals have deferred to EPA’s decision making under it. But EPA has never put this policy into a rule, and the limits on what constitutes a “control technology” and the particular process for determining it are nowhere in the statute. After recent Supreme Court decisions, courts can no longer defer to EPA’s legal interpretations—whether those interpretations expand agency power, or limit it, as is the case here. EPA should promulgate a new rule requiring the identification of truly lower emitting processes and practices (i.e., the “best”) in establishing pollution control requirements in air permits – not just for greenhouse gases, but also for conventional air emissions. A new approach could have broad benefits for public health and the environment and should be a priority for EPA. 

  1. EPA should reinvigorate the Clean Air Act’s “alternatives” requirement  

The statute requires, as part of the review and public hearing on an air permit, for the presentation of “alternatives” to the proposed source or modification. Despite that statutory directive, the provision has been largely ignored. In combination with the “redefining the source” policy, that means that cleaner technologies are never given a fair evaluation in the air permitting process. 

EPA should pursue rulemaking that directs permitting authorities to fully evaluate any alternatives presented by interested parties at the required hearing on any permit. The statute requires a proposed permit to be subject to a hearing, including a presentation of alternatives. Absent a requirement to consider such information, the language makes little sense: why require the permitting authority to listen to alternatives if they can’t do anything with that information?  

A reinvigorated and formalized alternatives analysis directive has the added benefit of existing outside of and additional to the steps of the BACT analysis. Even if a cleaner control or process option is not chosen as “the best” in the BACT process, when the permit comes to hearing, the permitting authority would have the opportunity to either reconsider the choice or confirm it. 

A more robust alternatives review process would also serve EPA’s stated objective to foster greater community engagement and support environmental justice, as it could give more weight to alternative proposals and other comments submitted both by advocacy groups and by the communities that would be affected by new industrial construction. 

There has never been more innovation available to clean industrial process technology, and the funding available from laws like IRA and IIJA make these alternatives more economically competitive than ever before. This is the ideal time to take another look at both critical air permitting elements – for the benefit of local communities, public health, and the climate.  

Related Posts

Stay in the know

Sign up today to receive the latest content, news, and developments from CATF experts.

"*" indicates required fields