EPA Proposes Greenhouse Gas Endangerment Finding and that Greenhouse Gases from Motor Vehicles Contribute to Air Pollution

04/20/2009

On April 17, 2009, EPA Administrator Lisa Jackson issued a long awaited proposal that would have EPA formally “find” that emissions of greenhouse gases may reasonably be anticipated to endanger public health and welfare (the “endangerment finding”). Administrator Jackson also issued a related proposal that would have EPA determine that emissions of certain greenhouse gases from motor vehicles contribute to air pollution (the “cause or contribute finding”). These proposals are the latest developments in the controversial issue of whether EPA should regulate greenhouse gases to protect against the adverse impacts of global warming and are sure to generate significant debate.

One significant concern under the Clean Air Act is that numerous additional regulatory requirements, including permitting, become applicable to sources emitting greenhouse gases if those pollutants become “regulated pollutants.” These requirements could be applicable to a wide range of facilities, including many institutional and commercial structures, that up until now have not been significantly regulated. EPA’s proposed findings, therefore, place increased pressure on Congress to enact legislation that would provide a comprehensive system of greenhouse gas regulation in lieu of the provisions of the current Clean Air Act. Congress is working on draft legislation to establish a “cap and trade” system to address greenhouse gases and exempt them from most Clean Air Act requirements.

The proposal for the endangerment finding stems from the April 2007 decision of the United States Supreme Court (Massachusetts v. EPA) that held that greenhouse gases including carbon dioxide were pollutants under the federal Clean Air Act and that directed EPA to determine whether they endanger public health or welfare or explain why it cannot make that determination.

The proposed endangerment finding would classify the air pollutant of concern to be the collective emissions of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. The proposed finding concludes that these greenhouse gases endanger both public health and welfare by increasing ground-level ozone, altering the climate, contributing to a rise in sea levels, and harming water resources, agriculture, wildlife and ecosystems. The proposal also notes that global warming presents serious national security issues.

The proposal for the cause and contribute finding addresses whether greenhouse gas emissions from motor vehicles contribute to air pollution. If EPA makes that finding, it must then proceed to develop standards to limit those emissions. The proposed cause or contribute finding is that the collective emissions of the four greenhouse gases (carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons) emitted by motor vehicle engines contribute to air pollution.

Typically, EPA proposes rules to restrict emissions at the same time it proposes to find endangerment and that emissions cause or contribute to air pollution. EPA has not done so in this case A separate rulemaking proposal will be needed if EPA determines to make the findings it has proposed.

The proposed findings will be the subject of public notice and comment for sixty days following publication of the proposal in the Federal Register. EPA has indicated it will hold at least two public hearings on the proposal: May 18, 2009 in Arlington, Virginia and May 21, 2009 in Seattle, Washington.

If you would like to learn more about the proposed rule or commenting upon it, please contact one of the lawyers below or see Haynes and Boone's Environmental practice. You may also view the alert in the PDF below.

James D. Braddock
512.867.8462
james.braddock@haynesboone.com

Jeff Civins
512.867.8477
jeff.civins@haynesboone.com

Mary Mendoza
512.867.8418
mary.mendoza@haynesboone.com

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