On June 11, EPA released its long-awaited Advanced Notice of Public Rulemaking (ANPR) for the regulation of greenhouse gas (GHG) emissions under the Clean Air Act. The ANPR does not issue any endangerment finding with regard to GHG emissions from mobile sources or make any policy recommendations for the regulation of GHGs. Instead, the document presents information on a number of GHG-related issues implicated by the Supreme Court’s decision in Massachusetts v EPA and solicits public comment on the information presented. The version of the ANPR released for public comment also includes comments from numerous federal agencies with a potential interest in GHG regulation. Issues discussed in the ANPR include:
- the state of scientific knowledge on the long-term effects of global GHG emissions, as well as current and projected GHG emissions from various sectors
- the role of technology in controlling GHG emissions
- the regulatory and legal background of GHG regulations in the United States
- the interplay among various regulatory programs under the CAA
- other petitions for regulation of GHGs currently pending before EPA
- policy options for GHG regulation, with an emphasis on market-oriented approaches
- the policy and economic impacts of economy-wide GHG regulation
In the summary to the ANPR, as well as in a public statement accompanying its release, EPA Administrator Stephen Johnson repeatedly emphasized his belief that the Clean Air Act is a poor tool for the regulation of GHG emissions and that action from Congress is required if the nation is "serious" about controlling climate change. As stated in a "preface" to the ANPR from the Administrator:
I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases. Based on the analysis to date, pursuing this course of action would inevitably result in a very complicated, time-consuming and, likely, convoluted set of regulations. These rules would largely pre-empt or overlay existing programs that help control greenhouse gas emissions and would be relatively ineffective at reducing greenhouse gas concentrations given the potentially damaging effect on jobs and the U.S. economy.
Johnson's introductory remarks represent a significant change in tone from the introductory remarks to the draft ANPR that was prepared by EPA in May 2008 and widely circulated after it was "leaked" to the press, but never officially released (it is unclear whether the May 2008 draft or another iteration of the ANPR was the document submitted to the Office of Management and Budget and other agencies for review). In the draft version, EPA acknowledged that the Clean Air Act requires the agency to regulate GHG emissions from mobile sources in the event the Administrator finds that they may "reasonably be anticipated to endanger public health or welfare," but stated that enacting such regulations could have the collateral effect of requiring regulation of GHGs from other sources under the Act—thus necessitating some analysis of those regulatory consequences.
The introduction to the current ANPR, by contrast, contains no discussion of EPA's duty to issue an endangerment finding and/or regulate mobile source GHG emissions under EPA. Instead, it focuses on the consequences of economy-wide regulation of all significant sources of GHG emissions, apparently assuming that any regulation of GHGs under the CAA would inevitably require economy-wide regulation of GHG emissions under the CAA—a statute the Administrator repeatedly described in a conference call announcing the release of the ANPR as "the wrong tool for the job."