On April 17, 2009, U.S. EPA released proposed findings that greenhouse gas ("GHG") emissions cause or contribute to air pollution that endangers public health and welfare. U.S. EPA's proposed findings stated, in pertinent part:

The effects of climate change observed to date and projected to occur in the future - including but not limited to the increased likelihood of more frequent and intense heat waves, more wildfires, degraded air quality, more heavy downpours and flooding, increased drought, greater sea level rise, more intense storms, harm to water resources, harm to agriculture, and harm to wildlife and ecosystems - are effects on public health and welfare within the meaning of the Clean Air Act.

U.S. EPA went on to provide that GHG emissions are likely contributing to the negative occurrences referenced above. As discussed in our 2007 second quarter newsletter, in Massachusetts v. EPA, 549 U.S. 497 (2007), the U.S. Supreme Court held that greenhouse gases are air pollutants covered by the Clean Air Act, and U.S. EPA must determine whether emissions of greenhouse gases cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or in the alternative, whether the science is too uncertain to make a reasoned decision on this issue.

In response to the U.S. Supreme Court's ruling in Massachusetts, U.S. EPA Administrator Lisa Jackson issued a proposal with two distinct findings regarding GHG emissions under section 202(a) of the Clean Air Act:

  • The current and projected concentrations of the mix of six key greenhouse gases (carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) in the atmosphere threaten the public health and welfare of current and future generations; and
  • The combined emissions of CO2, CH4, N2O, and HFCs from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key greenhouse gases and hence to the threat of climate change.

U.S. EPA has held two public hearings on the proposed findings to date. Public comments on the proposed findings must be submitted to U.S. EPA by June 23, 2009.

The proposed findings do not impose any immediate requirements upon the regulated community. However, U.S. EPA's next step may be to promulgate rules based, in part, on these findings, which would impose regulatory requirements on sources that emit GHGs. Importantly, in the proposed findings, U.S. EPA requests that Congress address the regulation of GHGs through comprehensive legislation. In the same regard, the Obama Administration has called for the enactment of a market-based "cap and trade" system to assist the regulated community in adjusting to the regulation of GHGs. As discussed below, U.S. EPA is proposing to require the reporting of GHG emissions in certain sectors of the economy.