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Obama Ups the Ante for Climate Change Legislation by Proposing to Regulate Greenhouse Gases Under Clean Air Act
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April 27, 2009
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By Christopher Marraro
Howrey LLP
The Environmental Protection Agency has made a game-changing move in the policy debate over climate change. EPA declared in a proposed rule that greenhouse gases endanger human health and welfare and that greenhouse gas emissions from new motor vehicles and new motor vehicle engines contribute to climate change.
The proposal is the Obama administration’s response to the 2007 U.S. Supreme Court decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) in which the court held that greenhouse gases are “air pollutants” under the Clean Air Act and remanded the matter to EPA to set forth a reasoned explanation for its decision as to whether to regulate greenhouse gasses.
In its rulemaking proposal on April 17, EPA answered the Supreme Court ruling by providing the administration’s rationale for regulating greenhouse gases: that climate change is the “unambiguous result of human [greenhouse gas] emissions” and that the “observed” adverse effects of climate change include degraded air quality, greater sea level rise, increased drought, and harm to agriculture, wildlife and ecosystems.
If the proposal becomes a final rule, EPA would define “air pollution” to include “the mix of six key directly emitted and long lived greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydroflurocarbons (HFCs), perflurocarbons (PFCs), and sulfur hexafluoride (SF6).”
By taking the administrative route to regulate greenhouse gases through the existing Clean Air Act (codified at 42 USC Chapter 85), the administration is gambling in high stakes poker. Endangerment language similar to §202 (a) (relating to vehicle emissions) is present in many other sections of the Clean Air Act, including §108 (National Ambient Air Quality Standards), §111 (New Source Performance Standards), §112 (National Elimination System for Hazardous Air Pollutants), §213 (non-road vehicle emissions) and §231 (aircraft emissions).
The proposed endangerment finding could well lead to a cascade of unintended regulation that includes a presumption of an endangerment finding under multiple provisions of the Clean Air Act, a corresponding duty to regulate new and existing stationary sources, and a duty to apply permit procedures to greenhouse emissions from as many as a million or more new sources, including numerous construction projects selected to be built pursuant to the Stimulus Package. This would create what Rep. John Dingell (D-Mich.), a 30-year veteran of Clean Air Act legislation, has called "a glorious mess."
EPA provides for a 60-day public comment period on its legal, scientific and policy choices and has scheduled two public hearings, one to be held May 18 in Arlington, Virginia, and the other to be held May 21 in Seattle, Washington. Among EPA’s legal and policy choices ripe for public comment are:
| 1. | Determination that §202 (a) of the Clean Air Act requires EPA to protect public health and welfare and that the administrator cannot “wait until harm has occurred but instead must be ready to take regulatory action to prevent harm before it occurs.”
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| 2. | Determination that EPA must “exercise judgment by weighing risks… and making reasonable projections of future trends and possibilities.”
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| 3. | Determination that the “Administrator is to consider the cumulative impact of sources of a pollutant… and is not to look at the risks attributable to a single source or class of sources.”
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| 4. | Determination that the “Administrator is to consider risks to all parts of our population, including those who are at greater risk for… increased susceptibility to adverse health effects.”
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| 5. | The proposal interprets §202 (a) as requiring that emissions from a source need only contribute to air pollution, not that “emissions from any one sector or group of sources are the sole or even the major part of an air pollution problem.”
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EPA’s proposal also rejects certain comments submitted in response to the Bush Administration’s July 30, 2008, Advanced Notice of Proposed Rulemaking on the regulation of greenhouse gases. For example, EPA rejected one industry group’s contention that EPA is limited to considering only those impacts that can be traced to the amount of air pollution directly attributable to the greenhouse gases emitted by new motor vehicles and engines.
The proposal also rejects the arguments of another ANPR commenter that no “endangerment” or “contribution” finding is permissible unless the standard imposing emissions reductions would “effectively mitigate” the impacts underlying the endangerment finding.
By rejecting these arguments, EPA is contending in the proposal that the endangerment finding stands separately from whether greenhouse gases contribute to climate change.
The administration obviously believes that its proposal to regulate greenhouse gases under the Clean Air Act will motivate Congress into legislative action on climate change. The maneuver will surely lead to a test of political will that in the end could either spawn thoughtful, common sense climate change legislation that balances environmental protection with economic realities or it could result in the “glorious mess” that Rep. Dingell has warned against.
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For more information about the issues covered in this report, please contact Christopher Marraro in our Washington office at 202-383-7006 or at marraroc@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2009 Howrey LLP
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