On Monday, December 7, the U.S. Environmental Protection Agency (“EPA”) formally determined that greenhouse gases endanger public health and welfare. This endangerment finding is a direct response to the Supreme Court’s 2007 decision in Massachusetts v. EPA, which held that greenhouse gases are pollutants covered by the Clean Air Act and ordered the agency to determine whether or not emissions of greenhouse gases from motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.
EPA’s endangerment finding for greenhouse gases marks the first in a series of steps that the agency is poised to take in order to regulate greenhouse gas emissions. The endangerment finding itself triggers the regulation of emissions from motor vehicles; specifically, it allows the EPA to finalize greenhouse gas emission standards for light-duty vehicles, which were proposed on September 15, 2009. After these vehicle standards are finalized and promulgated, greenhouse gases will be considered to be “regulated pollutants” that are also subject to permitting requirements under the Clean Air Act’s Prevention of Significant Deterioration (“PSD”) program for stationary sources. In order to make such regulation practicable, the EPA has proposed a “tailoring rule” to exempt from PSD requirements sources that emit fewer than 25,000 tons of carbon dioxide per year. Environmental organizations and others have questioned whether EPA has the legal authority to create a higher threshold for greenhouse gases than presently applies to other pollutants.
The endangerment finding for greenhouse gases, along with the regulations it will engender, are likely to be challenged in court. Even if these actions do not survive judicial scrutiny, they represent a concerted effort to regulate greenhouse gases beyond mere reporting requirements. Notably, the specter of complex greenhouse gas regulation by the EPA may increase the sense of urgency in Congress to forge legislation that will offer a comprehensive, coherent, and cost-effective approach to the problems posed by climate change.
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.
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.
