January 11, 2010
Posted by: David Lungren David_Lungren@epw.senate.gov
EPW POLICY BEAT: ENDANGERMENT 101
After a brief hibernation, EPW Policy Beat is back, this time grappling with EPA's endangerment finding for greenhouse gases under the Clean Air Act (CAA). We've commented on the finding before, and our view is straightforward: EPA's action (under Section 202(a) of the Act) is predicated on flawed science and will lead to a regulatory dragnet covering every corner of the economy, including schools, hospitals, nursing homes, commercial buildings, restaurants-and many more. On top of that, EPA's action will have an infinitesimal affect on global warming, as emissions from China, India, and other developing countries will easily negate any emissions reductions here at home.
So what next? EPA plans to finalize regulations covering emissions from new motor vehicles at the end of March. At that point, EPA either will decide that CO2 is a pollutant "subject to regulation" under the CAA, or choose to make that determination at a later date (possibly 2011). This is no mere arcane legalism-it will dictate when small businesses and thousands of other stationary sources will be subject to EPA's regulatory morass. We will ponder this issue another day. As for now, we thought it helpful (how presumptuous) to describe the basics of the endangerment finding, including its origins, its legal and scientific foundations, and its potential real-world consequences. In essence, it's EPW Policy Beat's "just-the-facts-ma'am" series on endangerment.
Our first installment describes some of the major legal milestones that led to the endangerment finding:
The Road to Endangerment
- The legal road to endangerment stretches back to 1999, when the International Center for Technology Assessment (ICTA), along with 18 other organizations, petitioned EPA to regulate greenhouse gas emissions from motor vehicles under the Section 202(a) of the CAA. For more background on the ICTA petition, click here: http://www.icta.org/doc/ghgpet2.pdf
- EPA Administrator Carol Browner punted the petition-the agency concluded CO2 is a pollutant under the CAA but declined to regulate-to the Bush Administration, which on September 8, 2003, rejected it and issued the so-called "Fabricant Memo" (named after EPA General Counsel Bob Fabricant). Among other things, EPA concluded that the CAA "does not authorize regulation to address global climate change." It also pointed to a National Research Council report, which concluded that "a causal linkage" between greenhouse gas emissions and global warming "cannot be unequivocally established." EPA believed unilateral regulation of U.S. motor vehicle emissions could weaken efforts to persuade developing countries to reduce their emissions. For more details on the Fabricant Memo, click here: http://elc.law.umaryland.edu/pdf/EPACO2memo2.pdf
- A three-judge panel of the DC Circuit ruled 2 to 1 in favor of EPA, though the majority issued differing opinions. In ruling on the merits, Judge Randolph found that EPA's action was not "arbitrary and capricious," while Judge Sentelle determined that none of the petitioners had standing under Article III of the Constitution. For a copy of the Massachusetts v. EPA decision, click here: http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/03-1361a.pdf
- The case eventually made its way to the Supreme Court. On April 2, 2007, in Massachusetts v. EPA, the Court found that greenhouse gases are air pollutants covered by the CAA. According to EPA, "The Court held that the Administrator must determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision." For a copy of Massachusetts v. EPA, click here: http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf
- In response to the court, the Bush Administration issued an Advanced Notice of Proposed Rulemaking (ANPR) on July 30, 2008, which outlined how regulating greenhouse gases under the CAA will harm the economy and create a legal and administrative maelstrom. As former EPA Administrator Steve Johnson wrote, "I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases. Based on the analysis to date, pursuing this course of action would inevitably result in a very complicated, time-consuming and, likely, convoluted set of regulations." For a copy of the ANPR, click here: http://www.epa.gov/EPA-AIR/2008/July/Day-30/a16432a.pdf
- On December 7, 2009, EPA issued the "endangerment and cause or contribute findings" for greenhouse gases under the CAA. "Pursuant to CAA section 202(a), the Administrator finds that greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare." For a copy of the findings, click here: http://www.epa.gov/climatechange/endangerment/downloads/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf