Publications

---

No one was surprised when the United States Environmental Protection Agency issued its finding that greenhouse gases (GHGs) endanger both public health and welfare, and that GHG emissions from motor vehicles contribute to the threat of climate change. See 74 Fed. Reg. 66496.

EPA's determination, issued on December 7, 2009 and published in today's Federal Register, was in direct response to the United States Supreme Court’s holding in Massachusetts v. EPA, 549 US 497 (2007) that EPA can regulate GHG emissions from mobile sources under the Clean Air Act (CAA) and that it must do so unless it determines that GHG emissions do not endanger public health or welfare, or that the science is too uncertain to make a reasoned decision.

According to EPA, its decision was based on both observed and projected effects of GHGs, their effect on the climate and the risks and impacts associated with climate change plus the significant contribution on-road vehicles make to GHG emissions.

While the endangerment finding itself does not impose any new obligations on regulated entities, it permits EPA and the Department of Transportation to finalize a jointly proposed rule establishing GHG emission standards and Corporate Average Fuel Economy standards for light-duty vehicles. See 74 Fed. Reg. 49454 (proposed on September 15, 2009). When this happens, GHGs will become federally regulated air pollutants subject to the Prevention of Significant Deterioration (PSD) and Title V permitting programs. Anticipating this result, EPA has proposed the “tailoring rule” to raise the statutory threshold for regulation under PSD and Title V to prevent virtually every GHG source from instantly becoming a major stationary source subject to the PSD and Title V permitting requirements. See 74 Fed. Reg. 55292.

The United States Congress is still considering a legislative approach to regulating GHGs through a cap-and-trade program that allows carbon allowances to be bought and sold among eligible parties. In June 2009, the House of Representatives passed the American Clean Energy and Security Act (H.R. 2454), and, in September 2009, the Clean Energy Jobs and American Power Act (S. 1733) was introduced by Senators Barbara Boxer (D-CA) and John Kerry (D-MA). Since the introduction of Senate legislation, Senators Kerry, Joe Lieberman (ID-CT), and Lindsey Graham (R-SC) have advocated for a new “framework” for climate and energy legislation designed to create consensus and secure passage in the Senate. For example, this new framework envisions a near-term GHG emissions reduction target closer to 17 percent from 2005 levels, as opposed to the 20 percent reduction proposed in the Clean Energy Jobs and American Power Act.

The endangerment finding was finalized just as negotiations started at the international climate change conference in Copenhagen. The finding is likely to be viewed as strengthening the negotiating position of the United States and signaling to the rest of the conference participants the willingness of the United States to commit to reducing GHG emissions.

For more information about the impact of this finding on your business, please contact:

Deborah Jennings
Chair, Environmental Practice

Catherine B. Campbell

William DuBois III

LeAnn M. Johnson-Koch

Alexandra H. Magill

Andrew B. Schatz

Steven Shimberg