EPA this afternoon released its long-awaited Advanced Notice of Proposed Rulemaking(“ANPR”) regarding options for dealing with climate change under the Clean Air Act. The 564-page document is formally captioned “Regulating Greenhouse Gas Emissions under the Clean Air Act” and is available at : http://www.epa.gov/epahome/pdf/anpr20080711.pdf  

The internal governmental disagreements about the ANPR and its contents were emphasized by the simultaneous release of letters from many other government agencies refusing to recognize it as a statement of Administration policy. Perhaps the most revealing of these is a letter from Susan Dudley, Administrator of the OMB Office of Information and Regulatory Affairs, who essentially serves as the White House gatekeeper on regulatory proposals. She flatly stated: “[t]he issues raised during interagency reviews are so significant that we have been unable to reach interagency consensus in a timely way, and as a result, this [ANPR] cannot be considered Administration policy or representative of the views of the Administration.”

The 120-day public comment period that will begin when the ANPR is published in the Federal Register assures that its principal significance will be in defining options for the next Administration. However, especially in light of the legislative obstacles evidenced by the Senate’s consideration last month of the Lieberman-Warner bill, there seems little doubt that many activists will press for serious consideration of at least some of the options the ANPR discusses. This will make comments from interests with differing views all the more important.

That extended public comment period also allows plenty of time for analysis and development of those comments. The scope of issues potentially to be addressed is perhaps most succinctly revealed by considering portions of three documents: the Supreme Court’s 2007 Massachusetts v. EPA decision, which held that the Clean Air Act grants it authority to regulate greenhouse gas emissions and thus triggered development of the ANPR; the fact sheet EPA released this afternoon with the proposal; and the Dudley (OMB-OIRA) letter described above.

The Massachusetts v. EPA decision rejected an opinion by the Bush Administration’s first EPA General Counsel that the Clean Air Act did not authorize regulation of greenhouse gases in motor vehicle emissions. Justice Stevens made it very clear that the majority saw the Act as putting onto EPA the burden of not using the Clean Air Act as a weapon to attack climate change:

Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. 

The Agency’s Fact Sheet makes it very clear that EPA sees the ANPR as a step towards making these decisions. Here is the list of “Key Issues” on which it says EPA is seeking comment:

  • Descriptions of key provisions and programs in the CAA [Clean Air Act], and advantages and disadvantages of regulating GHGs [Greenhouse Gases] under those provisions.
  • How a decision to regulate GHG emissions under one section of the CAA could or would lead to regulation of GHG emissions under other sections of the Act, including sections establishing permitting requirements for major stationary sources of air pollutants.
  • Issues relevant for Congress to consider for possible future climate legislation and the potential for overlap between future legislation and regulation under the existing CAA.
  • Scientific information relevant to, and the issues raised by, an endangerment analysis.
  • Information regarding potential regulatory approaches and technologies for reducing GHG emissions.

Finally, here is only a part of the laundry list of reasons presented by OMB-OIRA Administrator Dudley as to why the “hypothetical roadmap” for regulation set forth in the ANPR is problematic:

  • The draft relies on untested legal theories to suggest that some Clean Air Act Provision could be adopted to provide economic incentives to reduce greenhouse gas emissions. For example, it suggests that a regulatory program based on National Ambient Air Quality Standards might permit the adoption of a nationwide cap-and trade program.
  • The draft observes that regulation under almost any section of the Act would trigger the prevention of significant deterioration (PSD) program, which could require case-by-case EPA permitting covering building design for large office and residential buildings, hotels, retail stores and other similarly-sized projects..
  • The draft could result in the expanded, piecemeal application of command-and-control regulation covering both U.S. manufacturing activity and a broad range of commercial and household activities