On July 29, the Institute for Policy Integrity (IPI), a non-profit sponsored by the NYU Law School, petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from vehicle and aircraft fuels under the Clean Air Act. While a number of similar petitions have been filed since the U.S. Supreme Court declared in 2007 that EPA could regulate global warming pollution in Massachusetts v. EPA, 549 U.S. 497, this one stands out for both its timing and content.
Notably, this is the first such petition filed under the Obama Administration. EPA has yet to respond to any of the pending petitions. It appears that the Obama administration is hoping that Congress will enact new cap-and-trade legislation, which could provide EPA with a detailed roadmap for future greenhouse gas regulation. In April, however, EPA proposed a finding that greenhouse gasses endanger public health and welfare, opening the door to future regulation under the existing Clean Air Act if Congress does not pass new legislation.
The IPI petition claims that EPA not only can regulate greenhouse gas emissions from fuels, but also can establish an emissions trading system for the entire transportation sector using its current authority. This argument, also advanced in a recent IPI report, would replace EPA’s traditional, “command-and-control” regulation with a cap-and-trade system for global warming pollution – a move often thought to require separate authorization from Congress.
IPI’s petition requests a response from the agency within 180 days, and if the agency delays the Institute could pursue legal action to compel a decision. But IPI has said that it too favors a legislative response to climate change, like the American Clean Energy and Security Act that passed the House of Representatives last June. The Senate is expected to take up its own climate bill this fall, with petitions like IPI’s reminding lawmakers that if they do not limit greenhouse gas emissions, EPA is likely to do so on its own.
