In December, 2010, JLF played a role in objecting to the state regulations implementing the EPA’s Tailoring Rule.  This is an EPA rule that “creatively” mandates that stationary sources obtain permits to emit greenhouse gases.  By objecting to the rule, the effective date of the rule was pushed back and the legislature has a chance to consider the rule.

By implementing this rule, NC would be regulating GHG for the first time ever without the legislature having a say in the matter.  This type of major regulatory burden is properly a legislative decision, not a decision for unelected bureaucrats. 

Further, the Tailoring Rule is likely illegal and the state would be playing a role in implementing this illegal rule. 

There also was another serious concern, which I wrote about here:

By objecting to the rule, JLF has made it possible for the legislature to address another possible absurd result where, by complying, North Carolina businesses would be forced to deal with GHG rules even if the federal mandate no longer exists. If other states didn?t have such a burden, North Carolina would be at a major competitive disadvantage.

You can learn much more about the rationale behind the objections here, here, and here.

There is a question of whether delaying the rule had any impact on permitting, and specifically on small businesses.  The EPA had issued rules on December 23, 2010, which they have claimed addresses any problems that could arise for small emitters. My conversation with the EPA have confirmed this.  From what I wrote here:

Regardless, even if these [December 23, 2010] rules never were published, the EPA was well
aware that many states had to go through the political process to
implement these rules. Usually, states are given years to make such
changes, and in this situation they have only been given months by the
EPA.


North Carolina sent the EPA a letter, like other states did, that state
rules may not go into effect until after January 2, 2011 because of our
political process. As a practical matter, there was no risk in
objecting to the state rules. The objections allow the legislature to
decide how to address the Tailoring Rule. This can be done promptly.


Further, if there was such a serious concern from the Perdue Administration, Governor Perdue always could have issued an executive order as allowed by the state Administrative Procedure Act that would have made the EMC rules effective immediately.

Today, Governor Perdue did in fact issue an executive order.  By issuing the executive order, the rule is now in effect–any concerns regarding small businesses are now moot (if they weren’t already).   However, her executive order in no way limits the benefits of objecting to the rule.  The legislature can still disapprove of the rule as allowed by the state Administrative Procedure Act.  The ball is in the legislature’s court still and that was the primary purpose of the objections.

The legislature hopefully will now take action to clarify that NC will only regulate GHG as required by federal law and nothing else in existing state law authorizes the regulation of GHG.