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April 17th, 2009:

EPA Applies Clean Air Act To Greenhouse Gas Emissions

By John Timmer – Ars Technica | Last updated April 17, 2009

Two years after a Supreme Court decision ordering the EPA to decide how to approach greenhouse gas emissions under the Clean Air Act, the Agency has finally issued proposed findings that the gasses endanger public health, and that emissions from automobiles contribute to this form of pollution.

In a decision that was two years in the making, the Environmental Protection Agency announced Friday that it had reached preliminary findings that six greenhouse gasses endangered public welfare and that motor vehicles contribute to the environmental levels of four of these. The decision was required by the Clean Air Act, as determined by the US Supreme Court, but the Agency responded to the Bush-era decision with an extended period of inaction. The EPA is soliciting public feedback for the next 60 days, and will hold two public hearings before finalizing the decision.

The origins of the decision trace back several years, when a group of environmental organizations sued the EPA, contending that the Clean Air Act (specifically, section 202(a) of the Act) required the Agency to regulate the emissions of greenhouse gasses by automobiles. The statute reads in part, “The [EPA] Administrator shall 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 [her] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

The EPA declined to do so on procedural grounds, providing a variety of arguments that it claimed obviated any need for its action. For example, one of its justifications was that automotive greenhouse gas emissions are proportional to fuel efficiency, which is regulated by the Department of Transportation. This, in the EPA’s view, meant that it was off the hook when it came to regulating emissions.

That suit was ultimately joined by several states (and opposed by others); appeals eventually brought it before the Supreme Court. The Court reached a decision just over two years ago, finding that greenhouse gasses clearly fit the Clean Air Act’s definition of pollutants, meaning that the EPA was compelled to either regulate them or explain why they weren’t actually in need of regulation. That decision was released just over two years ago.

It put the Bush administration in an awkward place. At the time, its policy as enunciated by Interior Secretary Dirk Kempthorne, was that existing regulatory statues were inappropriate for application to greenhouse gasses (Kempthorne specifically mentioned both the Clean Air and Endangered Species Acts). Instead, the Administration wanted to see separate legislation passed to manage them separately, although (or, more likely, because) passage of any legislation of the sort was considered extremely unlikely.

At the time, we suggested that the EPA would declare its intention to respond to the decision by formulating rules using a process that would not be complete before Bush left office. Others suggested it find new statutory reasons to shirk this responsibility—current EPA administrator Lisa Jackson, in announcing this decision, noted that this advice was never accompanied by any indication of whether any such statutory reason actually existed. In the end, the Bush-era EPA simply did nothing. Although press reports indicated that the Agency’s science staff prepared a statement that declared greenhouse gasses to be pollutants under the Clean Air Act, the EPA never acted on it, or showed any indication it would respond to the Supreme Court’s decision.

The newly released draft findings are basically a bow to both the Supreme Court and the government’s own Climate Change Science Program. In the document, the EPA identifies six key anthropogenic greenhouse gasses: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. It lists a host of environmental and health impacts associated with greenhouse forcing of the climate, such as rising sea levels, changes in precipitation patterns and associated water shortages, extensive tree die-offs and forest fires, extended heatwaves, and intense precipitation events. For anyone who doesn’t buy the scientific community’s general agreement that greenhouse gasses can force the climate, the document mentions the ocean acidification caused by increases in atmospheric carbon dioxide.

With the endangerment finding out of the way, the EPA moved on to the “cause and contribute” finding, recognizing that emissions from the US’ transportation sources are a major contributor of anthropogenic greenhouse gasses. In fact, the proposed findings note, the US transportation sector alone would place fifth on the global emissions list, after the rest of the US, China, Russia, and India.

The proposed findings do not include any regulatory decisions; instead, they simply bring the EPA into compliance with the Supreme Court decision and establish a baseline from which regulatory decisions can be made. Chances are good that someone is going to sue over these findings, as well as any rules that do eventually emerge. Instead, these findings are likely to provide a spur to what the Bush administration claimed it always wanted: a distinct legislative framework for regulating greenhouse gasses. A number of bills that would provide this framework have been introduced to Congress, but progress has been slow and they face significant opposition. If there is one thing that’s likely to spur Congressional action on this matter, it’s the threat that the decision might be taken out of its hands.