United States: EPA Announces Final GHG Endangerment Finding

The final endangerment decision may open the door to more EPA regulation regarding GHG emissions, placing pressure on Congress to act on pending climate change legislation.

On December 7, 2009, the U.S. Environmental Protection Agency (EPA) released its finding that greenhouse gases (GHGs), including carbon dioxide, threaten public health and welfare. This final endangerment finding was released as the United Nations Climate Change Conference opened in Copenhagen, Denmark.

The EPA issued its proposed endangerment finding on April 17, 2009, and held a 60-day public comment period that ended in June 2009. The EPA received more than 380,000 public comments, including written comments and testimony at two public hearings in Arlington, Virginia, and Seattle, Washington, before releasing its final ruling. Click here (www.epa.gov/climatechange/endangerment/downloads/FinalFindings.pdf) for a pre-publication copy of the endangerment finding.

For more information, see McDermott's April 21, 2009, On the Subject " EPA Issues Proposed Endangerment Finding Regarding Greenhouse Gases" (www.mwe.com/index.cfm/fuseaction/publications.nldetail/object_id/88657f1a-3f21-4250-b5f2-e86414bb9ab9.cfm).

The Administrator made two distinct findings regarding GHGs under section 202(a) of the Clean Air Act (CAA):

According to EPA Administrator Lisa Jackson, "These long-overdue findings cement 2009's place in history as the year when the United States government began addressing the challenge of greenhouse gas pollution and seizing the opportunity of clean energy reform." In connection with the findings, the EPA published the following statement: "GHGs are the primary driver of climate change, which can lead to hotter, longer heat waves that threaten the health of the sick, poor or elderly; increases in ground-level ozone pollution linked to asthma and other respiratory illnesses; as well as other threats to the health and welfare of Americans."

The EPA's ruling is a response to the 2007 Supreme Court of the United States decision Massachusetts v. EPA, which found that the EPA has the statutory authority to determine whether the emissions of GHGs from new motor vehicles cause or contribute to air pollution threatening public health and welfare. While the final endangerment finding does not impose any emissions reduction requirements, it permits the EPA to finalize the proposed GHG standards for light-duty vehicles, which were proposed in a joint rulemaking with the U.S. Department of Transportation's National Highway Safety Administration in September 2009 and are expected to be finalized in March 2010. Click here (edocket.access.gpo.gov/2009/pdf/E9-22516.pdf) for a copy of the proposal.

This announcement follows a recent trend of EPA activity aimed at curtailing GHG emissions. In late September 2009, the EPA published the Final Mandatory Reporting of Greenhouse Gases Rule, which requires certain facilities and industries to report their annual GHG emissions. The EPA also announced a proposed rule that requires operating permits for large stationary sources, such as coal-burning power plants and refineries, that produce 25,000 tons of GHGs or more per year.

For more information on the EPA's recent regulations, see McDermott's On the Subject " EPA Finalizes GHG Reporting Rule, Proposes New GHG Permitting Requirements" (www.mwe.com/index.cfm/fuseaction/publications.nldetail/object_id/cbd5f545-1532-44e9-804e-03ae2562f49c.cfm).

The final endangerment decision may open the door to more EPA regulation regarding GHG emissions, placing pressure on Congress to act on pending climate change legislation. A bill passed in the House of Representatives in June 2009 prohibits the EPA from using the CAA to regulate GHG emissions, instead relying on a cap-and-trade program. However, a similar bill in the Senate has stalled in the midst of the current health care debate, and Democratic leadership has expressed doubts that it will come to a vote before the spring. Administrator Jackson has refused to reveal whether the EPA is planning on more action before the Senate tackles this issue. The Competitive Enterprise Institute, a think tank, has indicated that it intends to challenge the EPA's findings in court, and other challenges may follow.

For more information on the current climate change legislation, see McDermott's previous alerts on this subject:

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