Citing the Supreme Court in Massachusetts v. EPA for the
"precautionary" proposition that "the Clean Air Act and common sense . . .
demand regulatory action to prevent harm, even if the regulator is less than
certain that harm is otherwise inevitable," EPA has announced its expected, yet
controversial action finalizing its Greenhouse Gas (GHG) Endangerment Finding.
EPA concludes that GHGs, including carbon dioxide, "endanger" public health
and the environment. In a 280-page explanation of its Finding, EPA expressly
rejects the U.S. Chamber of Commerce's petition for an APA "on the record"
hearing, and staunchly defends its process as consistent with Clean Air Act (CAA)
EPA chose to announce its Endangerment Finding Dec. 7, 2009 - the opening day
of the United Nations Climate Change Conference in Copenhagen. With U.S. climate
change legislation stalled in the Senate, U.S. representatives to Copenhagen
undoubtedly want to provide reassurance of the United States' commitment to
leadership on climate change. On the world stage, EPA's positive Endangerment
Finding for GHGs is certain to be viewed as distinguishing the Obama
Administration 's position from that of the prior U.S. administration.
The Finding triggers a CAA requirement for EPA regulation of GHGs as "air
pollutants." Unlike the pending "cap-and-trade" legislative proposals, CAA
regulation of GHGs is anticipated to take the form of less flexible "command and
control" style performance standards. While EPA Administrator Jackson reiterated
in her announcement that the Obama Administration would prefer to address GHG
emissions under comprehensive cap-and-trade legislation, she also noted that EPA
was required to undertake the Endangerment Finding process by the Supreme Court
in Massachusetts. The positive Finding now creates a CAA mandate for regulation
and an increasingly loud drumbeat for legislative action - which as of this date
has been drowned out by the national healthcare debate.
EPA has already issued regulations requiring GHG emission monitoring and
reporting for most major sources to commence in 2010. See 74 FR 56260 (Oct. 30,
2009). But, once the Finding is published in the Federal Register, the pathway
will be clear for EPA to issue regulations that actually control GHG
emissions. The task of regulating this new set of pollutants is potentially
enormous since the CAA prescribes no "significance " thresholds for GHGs and
they are emitted by almost every sector of the U.S. economy. Many state
permitting agencies have expressed concern about being overwhelmed with GHG
permitting and enforcement obligations.
In response to this dilemma, EPA has already proposed regulations to limit
the scope of facilities that would be subject to GHG regulation. In what is
known as the "Tailoring Rule," proposed Sept. 30, 2009, EPA proposed 25,000 tons
per year (TPY) of carbon dioxide equivalent emissions as the threshold level of
emissions which would subject a facility to GHG regulation. See 74 FR 55292
(Oct.27, 2009). However, EPA's authority to prescribe by regulation " major
source " and "new source review" thresholds that differ from those stated in the
CAA is questionable, and many predict the Tailoring Rule will not withstand
In the preamble to the Tailoring Rule proposal, EPA provides a "roadmap" for
when and how GHGs will be deemed "subject to regulation" under the CAA. The
first regulation to actually require control of GHGs is expected to be the New
Light-Duty Vehicle GHG Regulation proposed Sept. 28, 2009, (74 FR 49454) and
expected to be finalized in March 2010.
Once that rule has been finalized, published and cleared under the
Congressional Review Act, sometime in May 2010, EPA will consider GHGs to be
"subject to regulation" under the CAA for all categories of new emissions
sources - even without further regulation. This means that all CAA permits for
new facilities or modifications that result in 25,000 TPY of CO2 equivalent
emissions will be required to install "best available control technology" to
What these control technologies will be is an open question. Unlike
conventional pollutants such as particulate matter or sulfur dioxide, there are
no commercially demonstrated means of reducing CO2 emissions other than by
reducing the production of CO2 in the first place - e.g., through reduced use of
CO2 generating materials and processes or more efficient combustion of fossil
fuels. Furthermore, geologic sequestration of CO2 gas, known as "carbon capture
and sequestration" (CCS), is still in the pilot testing stage, albeit with
millions of dollars in Department of Energy funding to promote CCS research.
Facing this dilemma, most industry observers consider switching to cleaner
fuels and "energy efficiency" projects to be the "low-hanging fruit." Indeed,
the threat of GHG regulation has spurred a worldwide race to discover and bring
to market energy-efficiency technologies and scientific breakthroughs that will
either sequester CO2 or reduce its production.
Also an open question is the impact the Endangerment Finding and coming EPA
regulations or legislation will have on pending and future climate change
litigation matters. The 2nd and 5th Circuit Courts of Appeal have recently
rejected defense arguments that climate change is a non-justiciable political
question - freeing the way for nuisance cases claiming Hurricane Katrina was
exacerbated by man-made GHG emissions.
Appeals of those matters could reach the Supreme Court. Moreover, EPA is now
poised to regulate GHGs based on its Finding that public health is endangered from
global warming. Violations of specific health and safety regulations can turn
cases into per se liability matters, in which damages are the only consideration
for the fact finder.
EPA received an astounding 380,000 public comments on its proposed Finding -
a majority of which were identical "mass mail comments," but including 11,000
individual comments raising scientific, technical, legal and procedural issues.
Rejecting "climategate" critics who have claimed bias in the science, EPA's
press release is subtitled the "Science overwhelmingly shows greenhouse gas
concentrations at unprecedented levels due to human activity."
EPA defends its Finding as based on a thorough public process, comprehensive
scientific assessments, and "robust synthesis reports," synthesizing thousands
of individual studies that were subjected to a "rigorous and exacting standard
of peer review by the expert community."
In recognition of the serious and momentous nature of this Finding, and
undoubtedly in anticipation of an appeal, EPA's pre-publication draft spends
more than 280 pages explaining its process and conclusions - and another 190
pages responding to specific comments. At least one group has already threatened
to appeal the Finding. However, it is unlikely that the Appellate Court will be
willing to step into this public policy debate or to substitute its judgment for
that of EPA on the scientific issues involved.
A copy of EPA's pre-publication Endangerment Finding and technical support
document can be accessed at
McGuireWoods LLP is a full service law firm with focused practices in the
Clean Air Act, Energy and Climate Change, and Environmental Litigation.