The Hearst Washington bureau recently reported that Environmental Protection Agency (EPA) Administrator Lisa Jackson has told reporters that a formal endangerment finding for carbon dioxide - the next step in the federal regulation of greenhouse gas emissions - will likely occur "in the next months". Jackson's comments may be the latest step by the Obama administration to encourage Congress to pass comprehensive climate change legislation.

In 2007 the Supreme Court ruled in Massachusetts v EPA(1) that greenhouse gases such as carbon dioxide fell within the definition of 'pollutant' under the federal Clean Air Act and could be regulated if the EPA made a finding that the compounds endangered the public. Once the EPA makes that finding, it will clear the way for the agency to regulate greenhouse gases under the Clean Air Act. Most stakeholders would prefer Congress to step in and regulate greenhouse gases, including carbon dioxide, directly through a cap-and-trade system for carbon emissions, as proposed in the Waxman-Markey legislation now pending before Congress.

However, with that legislation moving slowly in the Senate – after the House narrowly passed its own bill in June 2009 – Jackson's statement should be viewed as a not-too-subtle effort to make it known that if Congress does not act, then the Obama administration will likely implement its own scheme via EPA regulation. Any regulation without congressional action would not include a cap-and-trade system since such a scheme is not contemplated under current law. Thus, the "imminent threat" of EPA regulation of greenhouse gases most likely ensures that some type of climate change legislation will be passed by Congress in the relatively near future.

For further information on this topic please contact Steven C Russo at Sive Paget & Riesel PC by telephone (+1 212 421 2150), fax (+1 212 421 2035) or email (srusso@sprlaw.com).

Endnotes

(1) 549 US 497 (2007).

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