Ashley Santner

April 2, 2009

The Environmental Protection Agency ("EPA") appears to have done an about face regarding the previous denial of California's waiver petition to regulate greenhouse gases ("GHGs") from new motor vehicles. Under the Bush Administration, the agency dedicated seventy staffers and spent about $5.3 million on outside government contracts to prepare its denial of the waiver. In July 2008, EPA published an Advance Notice of Proposed Rulemaking ("ANPR"), which made no proposal regarding endangerment but instead sought comments on the implications and science of what an endangerment finding would entail. However, the White House resisted finalizing any actions linked to the Supreme Court opinion of Massachusetts v. EPA and ultimately punted the issue to the Obama administration.

In the landmark case, the Supreme Court held that GHGs fit under the definition of "pollutants" in the Clean Air Act ("CAA"). The court remanded the case to EPA in order to determine whether GHGs emitted from new motor vehicles do or do not cause or contribute to air pollution that endangers public health or welfare, or whether the science is too uncertain to make a reasoned judgment. Specifically, Section 202(a)(1) gives the Administrator a statutory mandate to "by regulation prescribe (and from time to time revise)…standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."

In an internal document that was leaked to the press on March 10, 2009, EPA Administrator Lisa Jackson sets forth her intention of signing the requisite endangerment finding for both public health and welfare on April 16, 2009 (emphasis added). This will be followed by a sixty day public comment period and two public hearings before the document goes final.

Thus, if EPA finds that emissions from new motor vehicles endanger the public health or welfare, it must promulgate regulations. To date, fourteen other states have applied for permission to adopt California's standards, and three have expressed intent that they are poised to adopt the standards.

The document also proposes categorizing the six primary greenhouse gases--carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride--together into a single group in order to provide a "common currency" for future regulations. Furthermore, this consolidation would bring EPA in line with several other scientific bodies, including the Nobel Prize winning U.N. Intergovernmental Panel on Climate Change.

Sources:

Clean Air Act, 42 U.S.C. § 7521 (2007).

Darren Samuelsohn, Leaked EPA document shows greenhouse gas endangerment finding on fast track, N.Y. Times, Mar. 10, 2009.

Darren Samuelsohn, CLIMATE: Will much-maligned EPA reg blueprint emerge as 'climate change bible'?, Greenwire, Aug. 7, 2008.

Massachusetts v. EPA, 549 U.S. 497 (2007).

Pew Center on Global Climate Change, Vehicle Greenhouse Gas Emissions Standards http://www.pewclimate.org/what_s_being_done/in_the_states/vehicle_ghg_standard.cfm (last visited Mar. 22, 2009).

U.S. Environmental Protection Agency, Proposed Endangerment Finding for GHGs in Response to Mass. v. EPA: Guidance-Option Selection Briefing (2009).