Steptoe & Johnson

Energy Law Update: EPA Finds Greenhouse Gases a Threat to Public Health and the Environment

As expected, the United States Environmental Protection Agency (the EPA) issued its final Endangerment Finding, which asserts that the emission of greenhouse gases (GHGs) are a threat to public health and the environment, and further, that GHG emissions from on-road vehicles contributed to that threat. The timing of this endangerment finding was likely linked to the international climate change negotiations currently ongoing in Copenhagen, Denmark.

The EPA found GHGs to be the primary driver of climate change, which, if not addressed through the lowering of emissions, could lead to hotter and longer heat waves, increases in ground-level ozone pollution linked to asthma and other respiratory illnesses, as well as other threats to the health and welfare of Americans. The EPA's endangerment finding covers emissions of six greenhouse gases—carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

The EPA's findings were in essence a response to the 2007 United States Supreme Court decision in Massachusetts v. EPA, which essentially required the EPA to make formal findings regarding the status of GHGs under the Clean Air Act. The EPA's formal finding now makes GHGs “air pollutants” within the meaning of the Act.

The EPA issued its initial proposed findings in April 2009 and held a 60-day public comment period. The agency received more than 380,000 comments during the comment period.
While the endangerment finding does not impose any emission reduction requirements or new regulations controlling the emission of GHGs, the finding now allows the EPA to finalize GHG standards proposed earlier this year for new light-duty vehicles, as part of a joint rule-making with the Department of Transportation. More importantly, it allows the EPA to engage in further rule-making to potentially impose emissions limits on other emitters of GHGs, without the need for Congressional approval.

The endangerment finding will likely heighten pressure on Congress to pass so-called climate change legislation in the near future. Current versions of climate change legislation, including legislation passed by the House of Representatives earlier this year, commonly referred to as Waxman-Markey, exempt GHGs from regulation pursuant to the Clean Air Act, but also impose a cap and trade program, whereby emissions of GHGs are capped and then reduced, while GHG emission credits are purchased and traded.

While many opponents of the legislation question the efficacy of global warming theories generally, some also question the timing of such legislation, believing that a cap and trade regime will result in substantially higher energy prices for consumers and business, many of whom have not recovered from the deep recession that has gripped the United States.

Armando F. Benincasa
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armando.benincasa@steptoe-johnson.com