On Friday, April 17, the U.S. Environmental Protection Agency ("EPA") released a proposed rule under the federal Clean Air Act ("CAA") that moves the federal government closer to regulating greenhouse gas ("GHG") emissions.1 The heart of the proposed rule, issued in response to the U.S. Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), is a determination that GHG emissions from motor vehicles endanger the public health and welfare.

The proposed rule – commonly referred to as the "Endangerment Finding" – does not contain any measures to limit GHG emissions. However, when formally promulgated, and absent Congressional intervention to adopt a "cap and trade" or other new program to address carbon emissions, the Endangerment Finding obligates EPA to establish such standards under the CAA for certain types of new motor vehicles. Likewise, the findings in the proposed rule will likely trigger the process under the CAA for developing national ambient air quality standards for GHGs and establishing emissions standards for stationary and other mobile sources. In short, the Endangerment Finding is a significant first step toward EPA assuming regulatory control over GHG emissions from a range of sources under the CAA.

The most significant consequence of the Endangerment Finding, however, may occur outside the scope of the CAA. The Endangerment Finding puts significant pressure on Congress to pass comprehensive climate change legislation. Many stakeholders believe that implementation of the command-and-control-standards embodied in the CAA would be inefficient and costly. They will continue to lobby Congress and the Administration for a federal cap and trade scheme or possibly a tax on GHGs. Stakeholders and members of Congress who are opposed to any limits on GHGs, however, can be expected to take steps both delay promulgation of the Endangerment Finding and any subsequent rules under the CAA, and to prevent adoption of any comprehensive new climate change legislation.

Footnote

1. Endangerment and Cause or Contribute Finding for Greenhouse Gases Under Section 202(a) of the Clean Air Act, EPA-HQ-OAR-2009-0171 (pre-publication proposal promulgated April 17, 2009).

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