On April 17, 2009, the EPA proposed two distinct findings—an endangerment finding and a cause or contribute finding— regarding greenhouse gases (GHGs) under section 202(a) of the Clean Air Act (“CAA” or “Act”). The EPA developed the proposed findings in response to a 2007 Supreme Court decision in which the Court found that GHGs are air pollutants covered by the Clean Air Act (Massachusetts v. EPA, 549 U.S. 497 (2007)). Under section 202(a) of the Act, both findings are necessary for the EPA to issue standards regulating emissions of GHGs from new motor vehicles or engines. As discussed below, the proposed findings will likely reach beyond section 202 and lead to additional proposed standards for other GHGemitting sources.
The Endangerment Finding
The EPA proposes to find that “atmospheric concentrations of greenhouse gases endanger public health and welfare within the meaning of section 202(a) of the Clean Air Act.” The EPA’s proposal states that GHGs are “very likely the cause of the observed increase in average temperatures and other climatic changes,” which give rise to numerous other conditions, such as an increase in heat waves, wildfires, flooding, drought, and intense storms; degraded air quality; and harm to water resources, agriculture, wildlife, and ecosystems. The EPA proposes that these conditions constitute effects on public health and welfare under the Act. The Administrator has identified six directly emitted and long-lived GHGs for which current and projected atmospheric concentrations endanger the public health and welfare. The six GHGs are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).
The Cause or Contribute Finding
The EPA further proposes to find that combined emissions of CO2, CH4, N2O, and HFCs from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of the specifically identified GHGs and thus contribute to air pollution that is endangering the public health and welfare under section 202(a) of the CAA.
What the Finding Means
The proposed findings will not impose any direct requirements on industry or other entities. If the proposed findings are finalized, however, the EPA must issue standards to address the findings under section 202(a) of the Act (Massachusetts, 549 U.S. at 533). In the pre-publication copy of the findings, the EPA states that it is currently developing proposed standards to regulate the four GHGs identified in the cause or contribute finding under section 202(a) of the Act and expects to propose those standards for public comment in several months. The forthcoming standards will likely be used in conjunction with the proposed GHG Reporting Rule to regulate new motor vehicles or engines.
The EPA states that the current proposed findings do not automatically trigger regulation under the entire Act, and the EPA will address petitions to regulate GHGs from other sources, such as GHG-emitting stationary sources and aircraft engines, in later actions. The proposed endangerment finding, however, could have a direct impact on those later actions. Because other sections of the Act require the EPA to promulgate regulations if the EPA makes an endangerment finding, the EPA will likely use the endangerment finding, and potentially the GHG Reporting Rule, to propose and implement standards for GHG emissions under other sections of the Act.
Section 111 of the Act—the New Source Performance Standards (NSPS)—is one section that requires the EPA to “include a category of sources in [the list of stationary source categories] if in [the Administrator’s] judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare” (42 U.S.C. § 7411(b)(1)(A)). The EPA must propose regulations that set standards of performance for new sources within any of the categories of sources on the list (42 U.S.C. 7411(b)(1)(B)). The EPA, in conjunction with the States, must also establish standards of performance for existing sources that would fall under the NSPS regulations if these existing sources were a new source. The current proposed endangerment finding, coupled with the proposed GHG Reporting Rule, would provide the EPA the necessary findings and information to develop regulations for stationary sources that emit a yet-to-be-determined amount of GHGs.
The EPA has issued a pre-publication copy of the findings. The official version will be published in the Federal Register under Docket ID No. EPA-HQ-OAR-2009-0171. Once published, the proposal will be open to comment for 60 days.
The proposed findings, as well as the proposed GHG Reporting Rule, are likely the beginning of more substantial GHG regulation. Seyfarth Shaw’s Environmental, Safety & Toxic Torts Group can provide you with additional information on how these proposals could affect your operation and what options are available to you during the public comment periods.