Today, a day that will likely live in environmental law infamy….the EPA Administrator Lisa Jackson finalized the "endangerment finding" in response to the U.S. Supreme Court’s ruling in EPA v. Massachusetts which was issued way back in April 2, 2007. While the Supreme Court found that greenhouse gases were air pollutants covered by the Clean Air Act, it did not say the Act mandated regulation. Rather, the Court said EPA was required to make additional findings regarding the danger presented by greenhouse gases before regulations would kick in.
The magic language for emission standards from motor vehicles appears in Section 202(a) of the Clean Air Act. Under Section 202(a), EPA is required to determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare (so called "endangerment finding"). If EPA makes a positive finding- meaning emissions endanger public health and welfare- it then promulgate greenhouse gas emission standards for motor vehicles. Today, the Administrator made an positive determination.
Today’s major announcement is the necessary precursor to mandatory emission standards for vehicles. More importantly, it sets in motion regulation of greenhouse gases from all sources, not just motor vehicles. Here are the steps that lead to that result:
- Positive "endangerment finding"
- Finalize regulations setting emission standards from motor vehicles- March 2010?
- Greenhouse gases (GHGs) become a "regulated pollutant" under the Clean Air Act- once a "regulated pollutant" other regulations in the Clean Air Act are automatically triggered.
- Most notably, on the same day vehicle standards are finalized, New Source Review (NSR) standards would include review of emissions of GHGs from new or expanding sources. No new regulatory action is required for NSR to apply to GHGs, it will automatically happen.
EPA realizes the process that has been set in motion for much broader regulations which is why it proposed the Greenhouse Gas Tailoring Rule in the Fall. (see prior post, EPA Risky Climate Change Regulatory Approach) The Tailoring Rule attempts to temporarily reduce the scope of the NSR program to only larger emission sources of GHGs.
Now that a positive endangerment finding has been finalized, broad GHG regulation is absolutely inevitable. Short of Congressional action, the existing Clean Air Act will be used to regulate GHG emissions. An outcome, even the EPA itself has said it does not prefer. Note the press release from EPA:
President Obama and Administrator Jackson have publicly stated that they support a legislative solution to the problem of climate change and Congress’ efforts to pass comprehensive climate legislation. However, climate change is threatening public health and welfare, and it is critical that EPA fulfill its obligation to respond to the 2007 U.S. Supreme Court ruling that determined that greenhouse gases fit within the Clean Air Act definition of air pollutants.
Congressional refusal to act swiftly on climate change legislation is putting us dangerously close to a chaotic regulatory scheme under existing Clean Air Act authority. In fact, as noted above, Congress has to act to take us off the path. Refusing to act, in order to blame President Obama is too large a price to pay to score a few political points.