In this Emerging Issues Commentary, Dustin Till of the Marten Law Group examines the EPA’s highly anticipated Advanced Notice of Public Rulemaking (ANPR), published in July 2008, which states that the Clean Air Act is ill-suited for the task of regulating global greenhouse gases and that, instead, Congress should enact comprehensive climate change legislation. This ANPR is EPA’s first formal response to the Supreme Court’s April 2007 decision in Massachusetts v. EPA.

“In that landmark opinion, the Supreme Court held that carbon dioxide and other greenhouse gases are pollutants under the Clean Air Act,” Mr. Till writes.  “The fact that greenhouse gases are pollutants, in turn, triggers a requirement for EPA to make an endangerment finding — that is, a determination as to whether greenhouse gases endanger public health or welfare. An endangerment finding, once made, would require EPA to begin rulemaking to bring greenhouse gases within the ambit of the Clean Air Act.

“That is something EPA is reluctant to do. In his preface to the ANPR, EPA Administrator Stephen Johnson described the Clean Air Act as an outdated law originally enacted to control regional pollutants that cause direct health effects, and one that would be relatively ineffective at reducing greenhouse gas concentrations given the potentially damaging effect on jobs and the U.S. economy. . . .

“The ANPR and the various agency comments make clear that EPA would face significant challenges if it proceeded with regulating greenhouse gas emissions under the Clean Air Act,” Mr. Till writes.

Subscribers to www.Lexis.com may read much more about this topic by purchasing Mr. Till’s entire expert commentary at Marten Law Group: EPA's Advanced Notice of Public Rulemaking Says Clean Air Act ‘Ill-Suited’ to Address Greenhouse Gases.