On July 29 2009 the Institute for Policy Integrity, a non-profit organization sponsored by the New York University Law School, petitioned(1) the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from vehicle and aircraft fuels under the Clean Air Act. While a number of similar petitions have been filed since the Supreme Court declared in 2007 that the EPA could regulate global warming pollution in Massachusetts v EPA,(2) this one stands out for both its timing and content.

This is the first such petition filed under the Obama administration. The EPA has yet to respond to any of the pending petitions. It appears that the Obama administration is hoping that Congress will enact new cap-and-trade legislation, which could provide the EPA with a detailed roadmap for future greenhouse gas regulation. However, in April 2009 the EPA proposed a finding that greenhouse gases endanger public health and welfare, opening the door to future regulation under the existing Clean Air Act if Congress does not pass new legislation.

The petition claims that the EPA can not only regulate greenhouse gas emissions from fuels, but also establish an emissions trading system for the entire transportation sector using its current authority. This argument, also advanced in a recent Institute for Policy Integrity report,(3) would replace the EPA's traditional 'command and control' regulation with a cap-and-trade system for global warming pollution – a move often thought to require separate authorization from Congress.

The petition requests a response from the EPA within 180 days; if the agency delays, the institute could pursue legal action to compel a decision. However, the institute has said that it too favours a legislative response to climate change, such as the American Clean Energy and Security Act passed by the House of Representatives in June (for further details please see "House of Representatives Passes Climate Change Legislation"). The Senate is expected to take up its own climate bill in the autumn, with petitions like this one reminding the legislature that if it does not limit greenhouse gas emissions, the EPA is likely to do so on its own.

For further information on this topic please contact Jonathan Kalmuss-Katz at Sive Paget & Riesel PC by telephone (+1 212 421 2150), fax (+1 212 421 2035) or email (jkalmuss-katz@sprlaw.com).

 

(1) Available at www.eenews.net/public/25/11954/features/documents/2009/07/29/document_gw_01.pdf.

(2) 549 US 497.

(3) Available at www.policyintegrity.org/publications/documents/TheRoadAhead.pdf.

 

 

Endnotes

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