United States: EPA Issues Proposed Endangerment Finding Regarding Greenhouse Gases

The EPA will accept public comments and hold public hearings prior to finalizing its proposed greenhouse gas endangerment finding.

On April 17, 2009, the Environmental Protection Agency (EPA) released its proposed finding that six greenhouse gases (GHGs), including carbon dioxide, endanger the public health and welfare. The finding comes two years after the Supreme Court of the United States found, in Massachusetts v. EPA, that the EPA has the statutory authority to determine whether carbon dioxide and other GHGs from new motor vehicles, as air pollutants, endanger public health or welfare under the Clean Air Act (CAA). Click here for a pre-publication copy of the proposed endangerment finding.

For more information, see McDermott's previous alerts on this subject, including " EPA's New Moves: GHG Reporting Rulemaking and Possible Regulation," published March 12, 2009.

Specifically, the EPA Administrator signed a proposal with two distinct findings regarding GHGs under section 202(a) of the CAA:

• The Endangerment Finding: The current and projected concentrations of six key GHGs—carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulfur hexafluoride (SF₆)—in the atmosphere threaten the public health and welfare of current and future generations.
• The Cause or Contribute Finding: The combined emissions of CO₂, CH₄, N₂O and HFCs from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key GHGs and hence to the threat of climate change.

Basis for the Proposed Finding

In making the proposed endangerment finding, the EPA did not perform additional or independent studies, but instead examined existing peer-reviewed scientific literature, including reports and conclusions from the U.S. Climate Change Science Program, the National Research Council and the Intergovernmental Panel on Climate Change. These studies have concluded that concentrations of GHGs are at an unprecedented level, and that such elevated levels are primarily the result of human activities. The EPA's proposed finding goes on to state that it is very likely that such anthropogenic GHG concentrations are driving the observed increase in global average temperatures. Thus, the EPA concluded, GHGs are the fundamental and underlying driver of human-induced climate change, which in turn poses risks to human health, society and the environment. Both the current and projected future effects of climate change were factored into the assessment of the full range of risks and impacts that the six GHGs and climate change pose to public health and welfare.

After consideration of such evidence and research, the Administrator has determined that the "total body of scientific evidence compellingly supports [the] proposal that greenhouse gases threaten both public health and welfare." For more information, see EPA Endangerment FAQs.

For the purposes of making its cause or contribute finding, the Administrator considered that the combined emissions of greenhouse gases from all on-road vehicles, e.g., those covered under section 202(a) of the CAA, contribute to both total U.S. (24 percent) and total global (more than 4 percent) GHG emissions. In fact, in 2006, the EPA found that section 202(a) source categories were collectively the second largest GHG-emitting sector in the United States, behind only the electricity generating sector. Notably, the EPA did not set a minimum threshold for emissions of GHGs that could be considered "contributing" to air pollution. Rather, the EPA considered the global nature of both GHGs and climate, and determined that because no single GHG source category dominates on a global scale, it would be reasonable to find that lower levels of emissions contribute to air pollution than might be considered appropriate in another context.

The EPA ultimately found that the emissions of four of the six key GHGs from new motor vehicles and new motor vehicle engines are contributing to air pollution that is endangering public health and welfare.

The EPA's Next Steps

Reaction on Capitol Hill to the EPA's proposed finding is mixed. U.S. House Speaker Nancy Pelosi expressed support for the action that would allow the EPA to regulate air pollution from vehicles. "Congress is working on a comprehensive solution to global warming, and I am committed to moving clean energy legislation this year that will include perspectives from across our nation to create jobs, increase our national security and reduce global warming," she said. House Minority Leader John A. Boehner stated that the action of the EPA "is nothing more than a backdoor attempt to enact a national energy tax that will have a crushing impact on consumers, jobs, and our economy. The administration is abusing the regulatory process to establish this tax because it knows there are not enough votes in Congress to force Americans to pay it."

The proposed finding is not final, however, and does not itself propose or impose any regulations on motor vehicles or other GHG sources. The EPA notes in the proposed finding, however, that it is currently developing proposed emissions standards based upon the endangerment finding, which it expects to publicly propose "several months from now." See Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, at 100 (Environmental Protection Agency, April 17, 2009) at 24.

The scope of CAA regulation and authority will likely be subject to litigation. The final endangerment finding also could result in significant carbon dioxide and other GHG emissions controls, which likely will affect not only tailpipe emissions but also could affect the power generation industry, chemical plants, cement manufacturers, refineries, agricultural plants and dozens of other industrial sectors in which carbon dioxide emissions are significant. Although it is likely that the proposed finding will influence congressional hearings on climate change legislation, it is unclear how the EPA's actions will affect the various climate change bills currently circulating in Congress.

The proposed finding now moves into a period of public comment for 60 days after the proposed finding has been published in the Federal Register. As of the date of this article, the EPA's proposed finding has not been published in the Federal Register. The agency will hold public hearings in Arlington, Virginia, on May 18, 2009, and in Seattle, Washington, on May 21, 2009.

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