The Hearst Washington Bureau reports today that EPA Administrator Lisa Jackson told reporters that a formal “endangerment finding” for carbon dioxide, the next step in the federal regulation of greenhouse gas emissions (GHGs) will likely occur “in the next months.”  Jackson’s comments may be the latest step by the Obama Administration to prod Congress into passing comprehensive climate change legislation.

In 2007 the Supreme Court ruled, in Massachusetts v. EPA, 549 U.S. 497 (2007), that greenhouse gases such as carbon dioxide fell within the definition of “pollutant” under the federal Clean Air Act and could be regulated if EPA made a finding that the compounds endangered the public.  Once EPA makes that finding it will clear the way for the agency to regulate greenhouse gases under the Clean Air Act.  Most stakeholders prefer that Congress step in and directly regulate GHGs, including carbon dioxide, directly through a cap-and-trade system for carbon emissions, as is proposed in the Waxman-Markey legislation now pending before Congress.

However, with that legislation moving slowly in the Senate – after the House narrowly passed its own bill in June – the EPA Administrator’s statement should be viewed as a not-too-subtle effort to make it known that if Congress does not act, then the Obama Administration will likely implement its own scheme via EPA regulation.  Any regulation without Congressional action would not include a cap-and-trade system since such a scheme is not contemplated under current law. Thus, the “imminent threat” of EPA regulation of GHGs most likely assures that some type of climate change legislation is passed by Congress in the relatively near future.

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