Monday, December 7, 2009

EPA Finalizes Endangerment Finding Relating To Greenhouse Gases

(Though not directly related to water, this development was too important to pass up)

Today, December 7, 2009, the EPA has announced that it has finalized its finding that greenhouse gases (in particular carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulphur hexafluoride) constitute a threat to public health and welfare. This determination is the end result of a process mandated by the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), where the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act.

Lisa Jackson, the EPA Administrator, announced that pursuant to this finding, large greenhouse gas emitters (more than 250 tonnes annually) will be required to incorporate the best available technology to reduce greenhouse gas emissions in all new construction and in the expansion of existing construction beginning next year. There will also be reporting requirements that will begin for large emitters in 2011.

This determination, though not unexpected, is legally significant in that the EPA is now required under the Clean Air Act to issue air quality criteria for these five greenhouse gases within the next twelve months. 42 U.S.C. §7408(a)(2). Simultaneously, the EPA is required to propose national ambient air quality standards for the greenhouse gases. 42 U.S.C. §7409(a)(2). From that point on there are a variety of statutory mandates that, in effect, require the EPA to promulgate regulations which will govern the emission of greenhouse gases.

I suggested some time ago that recent rhetoric coming from the EPA, and Ms. Jackson in particular, appeared to indicate that the EPA was awakening from its slumber over the last eight years. And that the EPA might prove to be a tool the administration could use to promulgate environmental regulation without having to rely on Congress. Well, the gauntlet appears to have well and truly been thrown down now. Unless Congress intervenes with some sort of climate legislation in the next twelve months (or otherwise overrules the EPA), it appears the EPA will start regulating greenhouse gases on its own.

The politics of the move are impressive. Ms. Jackson went out of her way at the press briefing to stress that she prefers that climate change be addressed legislatively by Congress. But if Congress doesn't act in the next twelve months, she can plausibly say that she has no choice under the law but to do what Congress won't. Indeed, the EPA's press release alludes to this very reality:

President Obama and Administrator Jackson have publicly stated that they support a legislative solution to the problem of climate change and Congress’ efforts to pass comprehensive climate legislation. However, climate change is threatening public health and welfare, and it is critical that EPA fulfill its obligation to respond to the 2007 U.S. Supreme Court ruling that determined that greenhouse gases fit within the Clean Air Act definition of air pollutants.

(You can find the release here.)

And while Congress may not be able to pass meaningful climate legislation in the next twelve months, it seems equally unlikely to me that they will be able to pass legislation stopping the EPA from acting.

This determination may well prove to be the opening bell for the serious regulation of greenhouse gases in the United States. Certainly any sort of regulation that comes out of the EPA is likely to be far stricter than anything Congress will be able to pass. That may put significant pressure on those opposing climate change legislation and force them to compromise. It will also give President Obama added legitimacy when he appears in Copenhagen.

It will be very interesting to see how this plays out over the next twelve months.

For further reading, the EPA has set up a web page here which brings together available resources on the subject.

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