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Though the Forest Service seems to believe otherwise, methane is subject to regulation <br />under the Clean Air Act. After the U.S. Supreme Court's recent opinion in Massachusetts v. <br />EPA, 127 S. Ct. 1438 (2007), the position that greenhouse gasses fall outside the Act's ambit is <br />untenable.25 The Court squarely held that they are pollutants under the Clean Air Act subject to <br />regulation by EPA. Id. at 1459. That, in turn, means methane emissions are subject to regulation <br />by the States through SIPs. <br />The Forest Service is mistaken that methane drainage from the Project is not a stationary <br />source, subject to PSD permitting. Colorado Regulations define a "mobile source" as: <br />Motor vehicles and other sources of air pollution that emit pollutants while moving and <br />that are capable of moving, and that commonly do not remain at one site (one or more <br />contiguous or adjacent properties owned or operated by the same person or persons under <br />common control). <br />AQCC Common Provision Regulations, Section I.G. None of these categories applies to the <br />Project's methane drainage wells. Plainly they are not "motor vehicles." or sources that "emit <br />pollutants while moving." Nor, as wells drilled into the ground, are they capable of moving in <br />any meaningful sense. Indeed, were they capable of moving, they still would not qualify as <br />mobile sources. Any location to which they might be moved would remain "owned or operated <br />particulate matter, vapor, or gas or any combination thereof which is emitted into or otherwise <br />enters the atmosphere," CRS 25-7-103 § 1.5, making clear that methane, as a gas emitted into the <br />atmosphere that threatens the health, welfare, convenience, and comfort of those in Colorado, is <br />fully subject to regulation under the Colorado Air Quality Control Act. <br />25 Because both the relevant Clean Air Act provisions and the state regulations cited <br />above are phrased in terms of emissions that are "subject to" regulation, it is immaterial whether <br />they have thus far been regulated by EPA or the State. The plain meaning of Section 165(a)(4) <br />of the Clean Air Act's mandate that PSD BACT requirements apply to "each pollutant subject to <br />regulation under [the Clean Air Act]" extends not only to air pollutants for which the Act its own <br />terms or EPA or the States by regulation have already imposed requirements, but also to air <br />pollutants for which EPA and the States possess but have not exercised such authority. "Subject <br />to regulation" means "capable of being regulated" and is a different category than pollutants that <br />are "currently regulated." <br />APPEAL OF E SEAM METHANE DRAINAGE WELLS PROJECT, APRIL 28, 2008 PAGE 39