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EPA Proposes Regulation of Greenhouse Gases under Clean Air Act

By Katerina Milenkovski, Litigation News Associate Editor – June 1, 2009

Responding to the U.S. Supreme Court’s ruling in Massachusetts v. EPA [PDF], the federal Environmental Protection Agency (EPA) recently issued a proposed endangerment finding that, if finalized, will give it authority to regulate greenhouse gases under the Clean Air Act.

Massachusetts v. EPA held that greenhouse gases are air pollutants covered by the Clean Air Act. The ruling directed the administrator of the EPA to determine whether emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution that may endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.

“While the Supreme Court’s decision in Massachusetts v. EPA was focused on mobile source greenhouse gas emissions, the proposed endangerment finding appears to apply to EPA’s regulatory authority over greenhouse gas emissions as a whole,” observes Charles Denton, Grand Rapids, MI, cochair of the ABA Section of Litigation’s Environmental Litigation Committee.

The Proposal
Indeed, the EPA’s proposal includes a broad finding that greenhouse gases threaten the public health and welfare, as well as a narrower finding that the combined emissions of certain greenhouse gases from new motor vehicles and engines contribute to the threat of climate change.

If finalized, the proposed finding would not impose any requirements on industry. It would simply pave the way for future regulation of greenhouse gases by the EPA.

Just a few weeks prior to the proposed endangerment finding, the EPA also proposed a mandatory greenhouse gas reporting rule that would require suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit more than 25,000 metric tons of greenhouse gases to submit annual greenhouse gas emission inventories to the EPA.

“It seems EPA would want to use the information gathered through the reporting rule to develop its regulatory scheme, assuming that the endangerment finding goes forward,” says Denton.

“My only doubt is whether or not EPA wants to regulate greenhouse gases under the Clean Air Act at all,” he says.

Affect on Industry
“There has been much discussion about whether the manufacturing sector can afford another regulatory burden and the cost of complying with a new regulatory program,” Denton notes.

This is a common concern among many. On May 12, 2009, Senator John Barrasso (R-WY) exposed what he called a “smoking gun” memo [PDF] from the White House to the EPA, warning that regulation of small emitters of carbon dioxide would have “serious economic consequences” for businesses and the overall economy.

The memo, which is an amalgamation of findings from various government agencies sent from the Office of Management and Budget to the EPA, has not been released by the EPA.

“The comments in that White House memo are nothing new,” according to Hines. “Those comments reflect the generally held views that the Clean Air Act is not equipped to regulate greenhouse gases. That’s been a big criticism from the outset,” says Robert L. “Buzz” Hines, San Francisco, CA, former cochair of the Section’s Environmental Litigation Committee.

“Senator Barrasso is pointing to the parade of horribles that could come from regulation of greenhouse gases under the Clean Air Act, but I don’t think that’s going to happen. While the proposed endangerment finding was widely expected and, in my mind, [was] the next logical step for EPA to take after Massachusetts v. EPA, I don’t think EPA rulemaking will be the ultimate greenhouse gas management scheme,” Hines says.

“Frankly, I think that the EPA proposals are meant to push Congress to come up with some comprehensive legislation, like that being proposed by Representatives Waxman and Markey in the House Energy and Commerce Committee,” Hines opines.

Affect on Litigation
As for the potential impact on litigation, “I think it's premature to predict that an endangerment finding will lead to a floodof litigation,” says Hines, “but I suppose that the finding does help legitimize some cases already filed, especially in the nuisance context, like the Kivalina v. ExxonMobil Corp. [PDF] lawsuit filed last year.” In Kivalina, an Alaskan fishing village seeks $400 million in damages related to global warming from several major energy companies.

“Greenhouse gas related claims could also be asserted by natural resource trustees in the context of natural resource damage claims,” adds Hines.

“Corporate America is very keen on insuring that there is transparency on what they are doing regarding climate change,” Hines points out. “There will be greater scrutiny associated with what businesses are doing and what they are reporting and disclosing to the public and to shareholders,” he says.

As a result, developments affecting regulation of greenhouse gas emission should be of interest even to the litigator who doesn’t practice environmental law.

Keywords: Massachusetts v. EPA, climate change, EPA, public health

  • June 4, 2009 – I think the reporting requirement should be for 1000 tons not 25000 tons; in fact 100 tons would be even better. Then we could start developing a real inventory and measuring reductions for real. The Clean Air Act is equipped if we want it to be. A unanimous Supreme Court thought so.


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