EPA Finds That Greenhouse Gases Endanger the Public Health and Welfare The Environmental Protection Agency announced yesterday that greenhouse gases, including those emitted by motor vehicles, pose a threat to the public health and welfare of the American people. By issuing this new endangerment finding under Section 202(a) of the Clean Air Act, EPA has paved the way for the promulgation of greenhouse gas emissions standards for new motor vehicles as part of a joint rulemaking with the Department of Transportation. EPA's announcement stems from the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which found that greenhouse gases could be air pollutants covered by the Clean Air Act, and that EPA's previously stated reasons for declining to regulate such emissions were an abuse of its discretion. Massachusetts v. EPA required the EPA Administrator to determine whether emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger the public health or welfare. EPA's Action Administrator Jackson announced two new findings regarding greenhouse gases under Section 202(a) of the Clean Air Act:
EPA's findings are based on its examination of current scientific research, including that from the U.S. Climate Change Science Program and the Intergovernmental Panel on Climate Change. The findings are based on EPA's assessment of increases in morbidity and mortality due to an increase in the number and intensity of severe heat waves, as well as increased risks of respiratory infection, asthma aggravation and premature death due to worsened regional ozone, which is exacerbated by increased temperatures. In making this new endangerment finding, EPA also pointed to the impacts of climate change on the severity of storms, especially along the Gulf and Atlantic coasts, and on the intensity of precipitation events. Implications of the Endangerment Finding Yesterday's endangerment finding was timed to coincide with the opening of the climate talks in Copenhagen, Denmark, and signals the first step to broader regulation of greenhouse gas emissions under the Clean Air Act. Although these findings do not themselves impose any requirements on the automobile industry or others, this action is a prerequisite to finalizing the EPA's proposed greenhouse gas emission standards for motor vehicles, which were jointly proposed by EPA and the Department of Transportation's National Highway Safety Administration on September 15, 2009. While any other regulation of greenhouse gases would be subject to further notice and comment, the endangerment finding for mobile sources does set in motion a chain of events that could—in the absence of legislation—result in the sweeping use of existing Clean Air Act authorities to regulate greenhouse gas emissions. The Regulation of GHG Emissions Under Title I of the Clean Air Act EPA's final endangerment finding for motor vehicles, as a practical matter, may compel EPA to establish greenhouse gas regulations under other parts of the Clean Air Act. Under Title I of the Act, for example, EPA is required by Section 108 to establish national ambient air quality standards ("NAAQS") when the Agency determines that emissions of an air pollutant "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare" and where "the presence of [such pollutant] in the ambient air results from numerous or diverse mobile or stationary sources." 42 U.S.C. 7408(a)(1). Indeed, anticipating this final endangerment finding, the Center for Biological Diversity and 350.org petitioned EPA on December 2, 2009, to designate greenhouse gases as "criteria" air pollutants and to cap atmospheric carbon dioxide at 350 parts per million (ppm). To view this petition, please follow the following link: Click Here Although EPA has not publicly stated that it intends to establish an air quality standard for greenhouse gases, such standards will almost certainly result from yesterday's endangerment finding. There is a near-perfect correlation in the language used by the regulatory triggers in the mobile source and NAAQS sections of the Clean Air Act, making it difficult for the Agency to explain why it found that greenhouse gas emissions from mobile sources trigger an endangerment finding under Section 202(a), but failed to find that the presence of greenhouse gases in the ambient air "results from numerous or diverse mobile or stationary sources" so as to drive an endangerment finding under Section 108. Endangerment Finding & Prevention of Significant Deterioration Permitting In other areas, EPA already has taken steps to cabin the otherwise sweeping regulatory impact of the endangerment finding. On September 30, 2009, EPA proposed a new rule that will regulate greenhouse gas emissions from stationary sources under the Prevention of Significant Deterioration ("PSD") program and the Title V operating permit program. The PSD program is part of EPA's preconstruction permitting program for new sources of air pollution. These statutory requirements are triggered by regulation of a pollutant under any other section of the Act and generally require preconstruction review and permitting for "major stationary sources," a term which captures most refineries and factories. Impacted stationary sources will be required to demonstrate the use of best available control technologies ("BACT") and energy efficiency measures to minimize greenhouse gas emissions when facilities are constructed or significantly modified. EPA characterized this proposal as a "tailoring" rule. Anticipating that EPA's eventual regulation of greenhouse gas emissions from motor vehicles will trigger PSD and Title V applicability requirements, the rule "resets" the Clean Air Act's current statutory thresholds for regulating pollutants under PSD from 100 or 250 tons per year to 10,000 and 25,000 tons per year for greenhouse gases specifically. While the lower statutory thresholds are appropriate for other pollutants, EPA says that they are not feasible for greenhouse gases, which are emitted in much larger quantities. The agency justifies this proposal by stating that the "judicial doctrine of 'absurd results' [and 'administrative necessity'] authorizes departure from a literal application of statutory provisions." Similarly, under the Title V operating permit program, EPA has proposed a major source emissions applicability threshold of 25,000 tons per year of carbon dioxide-equivalent (CO2e) for existing industrial facilities. EPA Expresses a Preference for Comprehensive Legislation Conclusion
Gibson Dunn attorneys Stacie B. Fletcher and Rebecca Gray contributed to this issue of the Climate Change Newsletter. Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice. If you would like NOT to receive future issues of the Climate Change newsletter from the firm, please send an email to climatechange@gibsondunn.com with the words 'UNSUBSCRIBE Climate Change' in the subject line. Thank you. Please visit our website at www.gibsondunn.com |
December 2009
EPA Finds That Greenhouse Gases Endanger the Public Health and Welfare
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