In this Emerging Issues Analysis, Svend Brandt-Erichsen, Dustin Till and Brad Marten of Marten Law Group discuss the Environmental Protection Agency’s April 17, 2009, proposed finding that greenhouse gas (GHG) emissions cause or contribute to air pollution that endangers public health and welfare. The EPA’s so-called endangerment finding implements the Supreme Court’s landmark 2007 decision, Massachusetts v. EPA, which held that EPA has the authority to regulate GHGs. Publication of EPA’s notice in the Federal Register will open a 60-day comment period, which will include public hearings in Seattle, Wash., on May 21, 2009, and Arlington, Va., on May 18, 2009.

“Some observers — including some members of Congress — see EPA’s action as more of a political stratagem than a serious effort at regulation,” the authors write.  “They point out that, in making the proposed finding, EPA was careful not to propose any specific rules, and point to language in EPA’s press release stating the agency’s preference that Congress act, so that it won’t have to. It is now no longer a choice between doing a bill or doing nothing. It is now a choice between regulation and legislation, said Rep. Ed Markey (D-Mass.), chairman of the Energy and Environment Subcommittee, who introduced a draft climate bill with House Energy and Commerce Chairman Henry Waxman (D-Cal.). The EPA will have to act if Congress does not act, but they are right in the Obama Administration to prefer legislation.

“But if EPA’s action is a strategy only, it is a strategy that could explode, causing significant collateral damage. There is strong opposition among some industry groups to cap and trade legislation, which some Republican lawmakers have already taken to calling a cap and tax that the country can ill afford. With the endangerment finding made, the fuse is lit, and if Congress fails to act to preempt Clean Air Act regulation, thousands or even tens of thousands of sources of carbon dioxide and methane not currently regulated could come within the permit programs set up under the Clean Air Act. Regulating carbon dioxide (CO2) could by itself increase the number of air permits required by a factor of 10, and 550,000 additional sources could require operating permits (compared to 15,000-16,000 currently).

“Perhaps even more importantly, regardless of whether EPA or Congress acts first, environmental activists and their lawyers can be expected to immediately seize on EPA’s endangerment finding as a weapon to challenge power plants and other energy, transportation, development, and commercial projects — including stimulus-funded projects — under state and federal Clean Air Act laws, as well as under the National Environmental Policy Act and its state equivalents.

“It has been two to three years now since a number of states began enacting climate change laws and regulations, many with the tacit expectation that Congress would act in time to prevent their having to implement those programs. But Congress has not acted, and many of those same states, lacking the funds or political will, now find themselves having to curtail or repeal laws they only recently enacted. Similarly, EPA appears to be hoping that by threatening to regulate, it will force Congress to legislate. If, however, Congress continues to bog down, and EPA is in fact forced to regulate, then an already complex situation could very quickly become even more unwieldy.”

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