Matt Dempsey (202) 224-9797

David Lungren (202) 224-5642



Bush EPA found no endangerment after months of deliberations

Washington, D.C.-The Minority Staff of the Senate Committee on Environment and Public Works responded to the release of a letter by former EPA Administrator Stephen Johnson on the legal implications of the Supreme Court's 2007 decision in Massachusetts v. EPA.  The letter was released by Rep. Henry Waxman (D-Calif.).

Johnson's letter came six months before EPA released the "Advanced Notice of Proposed Rulemaking (ANPR): Regulating Greenhouse Gases under the Clean Air Act," which explored the multitude of scientific, technical, legal and economic problems associated with making an endangerment finding for GHGs under the CAA.  As former Administrator Johnson wrote in the ANPR:

"One point is clear: the potential regulation of greenhouse gases under any portion of  the Clean Air Act could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land.

"I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted  to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases.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."

Notably, given these and other considerations, EPA ultimately decided not to issue an endangerment finding.

The Obama EPA, however, ignored these concerns and issued a positive endangerment finding in December 2009.  It is now dealing with the consequences: a regulatory morass that is stalling economic growth and keeping people unemployed-all for no meaningful impact on climate change. 

After months of deliberations, the Secretaries of Energy, Commerce, Agriculture and Transportation, among many other officials, expressed overwhelming opposition to EPA making a positive endangerment finding, noting the array of legal and practical complexities associated with regulating GHGs under the CAA, as well as the many unresolved technical and scientific issues involving climate change and its causes. 

Also, John Marburger, Director of the White House Office of Science and Technology Policy, wrote, "Anthropogenically driven climate impacts are in nearly every case indistinguishable from naturally occurring phenomena. The anthropogenic contribution is apparent primarily in retrospective statistical analyses, and its adverse impacts cannot be readily distinguished from impacts that would have occurred in the absence of anthropogenic warming."

Here are excerpts from a letter sent from Susan Dudley, then head of the Office of Information and Regulatory Affairs at OMB to Stephen Johnson on EPA's draft ANPR, as well as excerpts of a letter from the Secretaries of Agriculture, DOE, Commerce, and Transportation to Dudley on same, both from July 2008:

Dudley letter:

"As reflected in these letters, there is strong disagreement with many of the legal, analytical, economic, science and policy interpretations in the draft; however, these letters do reflect agreement with you that the Clean Air Act is a deeply flawed and unsuitable vehicle for reducing greenhouse gas emissions. Interagency reviewers concluded upon reading the draft that trying to address greenhouse gas emissions through the existing provisions of the Clean Air Act will not only harm the U.S. economy, but will fail to provide an effective response to the global challenge of climate change." [Emphasis added] Letter from Susan Dudley, Administrator, Office of Information and Regulatory Affairs, to Stephen Johnson, Administrator, EPA, July 10, 2008

Secretaries' letter:

"The EPA staff now has prepared a draft suggesting that the Clean Air Act can be both workable and effective for addressing global climate change by regulating GHG emissions from stationary and mobile sources of every kind.  Our agencies have serious concerns with this suggestion because it does not fairly recognize the enormous-and we believe insurmountable-burdens, difficulties, and costs, and likely limited benefits, of using the Clean Air Act to regulate GHG emissions...

"Moreover, some might read the draft's discussion of an array of GHG regulatory constructs to prejudge the question of endangerment, even though there are critical open issues that must be addressed and resolved in making that legal determination and which must be decided before GHG emissions can be regulated under the Clean Air Act."

Letter signed by Mary Peters, Secretary of Transportation; Carol Gutierrez, Secretary of Commerce; Edward Schafer, Secretary of Agriculture; Samuel Bodman, Secretary of Energy to Susan Dudley, Administrator, Office of Information and Regulatory Affairs, OMB, July 10, 2008

Link to EPA ANPR on greenhouse gas regulation