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EPA Issues Advance Notice of Proposed Rulemaking on GHG Emissions: Asks for Further Public Comment

Beveridge & Diamond, P.C., July 30, 2008

On July 11, EPA confirmed that the present Administration will not be regulating greenhouse gas (GHG) emissions.  Stating that the Clean Air Act (CAA) is “ill-suited for the task of regulating global greenhouse gasses,” and that any such regulation “would result in an unprecedented expansion of EPA authority and would have a profound effect on virtually every sector of the economy,” EPA instead issued an Advance Notice of Proposed Rulemaking (ANPR) seeking public comment on the potential ramifications of using the Clean Air Act to regulate greenhouse gas emissions.  73 Fed. Reg. 44,354, 44,355 (July 30, 2008); see also Administrator Johnson Press Conference Call Regarding Advance Notice of Proposed Rulemaking (July 11, 2008).

This ANPR stems from last year’s Massachusetts v. EPA decision, in which the Supreme Court held that GHGs meet the CAA definition of an “air pollutant” and that Section 202(a)(1) of the CAA provided EPA with the authority to regulate GHGs.  549 U.S. 497 (2007).  The Court concluded that, if EPA found that GHGs endanger human health or welfare, the Agency would be required to regulate them under the CAA.  Conversely, if EPA determined that GHGs did not present a danger to human health or welfare, the Supreme Court held that such a finding must be supported with scientific evidence.

EPA’s subsequent actions appeared to indicate that the Agency intended to rule that GHGs potentially endanger human health or welfare, and begin to regulate GHGs.  On May 14, 2007, in response to the Massachusetts decision, President Bush issued an executive order directing EPA to address GHG emissions from motor vehicles, nonroad vehicles, and nonroad engines, in conjunction with the Departments of Energy, Agriculture and Transportation.  Subsequently, on December 19, 2007, Congress enacted the Energy Independence and Security Act, which required the Department of Transportation to modify its fuel economy standards in coordination with EPA, and provided EPA with a mandate to strengthen existing CAA renewable fuel standards.  In December 2007, EPA issued a finding that there is compelling and robust evidence that GHG emissions endanger the public welfare, and that global climate change is “unequivocal.” 

The ANPR, however, makes no finding on whether GHGs pose a threat to human health or welfare.  Instead, the ANPR lays out numerous suggestions for reducing GHGs from automobiles, ships, trains, power plants, factories and refineries.  The ANPR also includes the comments, questions, and concerns that EPA received on the document from other federal agencies.

Throughout the press conference covering the issuance of the document, Administrator Johnson emphasized that the CAA is an imperfect tool for the problem of climate change, and likened regulation of GHG emissions under the CAA as “fitting a square peg into a round hole.”  Due to the complexity of the problems of regulating GHGs through the CAA and the decades of litigation that would likely follow the development of regulation, EPA believes that the solution to the problem of GHGs can only be found through Congressional action.  Thus, EPA’s July 30, 2008 ANPR seeking comments on the effect of GHG regulation through the CAA likely means that EPA will not issue regulations on GHG emissions before the end of the current administration. 

For more information, please contact Joe Bartels, jbartels@bdlaw.com, or Holli Feichko, hfeichko@bdlaw.com.

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