On July 11, the Environmental Protection Agency (EPA) issued an Advance Notice of Proposed Rulemaking (ANPR) requesting public comment on whether and how the Agency should regulate emissions of greenhouse gases (GHG) using its authority under the Clean Air Act (CAA).
The ANPR contains a wide-ranging discussion of the science of climate change, and the options for regulating GHG emissions under the Act. It foreshadows how the agency might exercise its CAA authorities to address climate change were it given the opportunity. However, in a preface to the document, EPA Administrator Stephen Johnson emphasizes that the Clean Air Act is "ill-suited" for regulation of GHG emissions:
I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases. Based on the analysis to date, pursuing this course of action would inevitably result in a very complicated, time-consuming and, likely, convoluted set of regulations. These rules would largely pre-empt or overlay existing programs that help control greenhouse gas emissions and would be relatively ineffective at reducing greenhouse gas concentrations given the potentially damaging effect on jobs and the U.S. economy.
The ANPR is EPA's initial response to the U.S. Supreme Court's April 2007 Massachusetts v. EPA decision that GHGs are "air pollutants" under the CAA and the Court's subsequent directive that EPA determine whether GHGs emissions "endanger public health or welfare." Under the CAA, such an "endangerment finding" with respect to a pollutant triggers certain obligations for EPA to regulate sources of the pollutant.
EPA's issuance of the ANPR marks an early step in the process of making a decision on endangerment. However, the ANPR does not make a proposal on the endangerment issue, nor make does it make particular policy recommendations.
Agency rulemaking actions such as the ANPR are typically subject to an interagency review process in which the issuing agency receives and addresses comments and concerns prior to publication. However, citing the complexity of the issues in the ANPR, EPA Administrator Johnson departed from the normal review by incorporating into the ANPR itself comments from several agencies, including the Office of Management and Budget; the Departments of Agriculture, Commerce, and Transportation; and the Small Business Administration. The reviewing agencies' extensive comments generally emphasize that regulating GHGs using the CAA would be unworkable.
Public comments will be due 120 days from the date of publication of the ANPR in the Federal Register. This deadline falls after the date of the Presidential election in November. Further EPA action in the docket during the current presidential administration appears quite unlikely. However, the request for public comment on the ANPR represents an important opportunity for entities that could be affected by future GHG regulations to provide input to the regulatory process.
Judicial action could cut short or significantly modify EPA's deliberate approach to determining whether and how to regulate sources of GHG emissions. A number of lawsuits have challenged EPA's alleged failure to regulate GHGs from power plants and other types of sources; a court decision in one of those cases may force earlier Agency action.
Action by Congress is another possible outcome. Concerns about regulation of GHG emissions under the Clean Air Act could lead key stakeholders to request that Congress move forward with a comprehensive legislative program.
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