In the recent proposed rule announced by the US Environmental Protection Agency (EPA), the agency commented on many things. Beyond the obvious importance of requiring facilities to monitor and report greenhouse gas emissions on an economy-wide basis, perhaps one of the least discussed aspects of the rule is the comment on the potential impact of greenhouse gas emissions on the country. The question of an endangerment finding impacts the statutory responsibility of EPA to regulate emissions of greenhouse gas emissions under the Clean Air Act. If EPA issues such a finding, it will have the authority if not be mandated to move forward with a greenhouse gas emission regulatory system under the Clean Air Act, even if Congress does not pass climate change legislation.
After the US Supreme Court announced its opinion in Massachusetts v. EPA, in which the court remanded the decision not to regulate greenhouse gas emissions from automobiles to the agency for further consideration, the Bush Administration issued an advanced notice of rule making (ANPR) in which the potential impacts to the economy were discussed in great detail. EPA did not issue an endangerment finding.
Currently, President Obama's EPA Administrator, Lisa Jackson's, has asked her staff to review the ANPR and to evaluate whether an endangerment finding for greenhouse gas emissions under the Clean Air Act is warranted. Most commentators believe such a finding will be issued by the EPA.
So how does the proposed GHG Reporting Rule come into play? The rule in itself is required by a portion of the Omnibus Spending Bill passed in December of 2007, and which former President Bush signed. This provision appropriated money for EPA to promulgate a GHG Reporting Rule. EPA has now proposed such a rule, after much work was done by the EPA under the Bush Administration, but no rule was ever proposed.
Now, the rule has been issued and it states that the decisions in proposing the rule were in part motivated by gathering appropriate data for future regulation and policy development regarding greenhouse gas emissions. The preamble to the rule also discusses EPA's authority under the Clean Air Act to require GHG reporting.
Finally, the preamble discussed the International Panel on Climate Change (IPCC) conclusions as to the human generated GHG emissions and the impact on climate change. This may be the most significant statement in the document in terms of where the agency is headed with respect to an endangerment finding.
The preamble to the GHG Reporting Rule states:
Future projections show that, for most scenarios, atmospheric concentrations of GHGs are expected to continue climbing for most if not all of the remainder of this century; with associated increases in average temperature. Overall risk to human health, society and the environmental increases with increases in both the rate and magnitude of climate change.
Based on these statements, it seems clear that EPA has reached conclusions that would indicate if a decision is made regarding whether an endangerment exists, the agency would conclude that GHG emissions present a significant risk. The real question may be what then would EPA do after issuing such a finding. Would it proceed to developing rules to limit greenhouse gas emissions? Would it give Congress a certain amount of time to enact climate change legislation, acting only if Congress failed to pass such legislation?
These are all questions that will remain of immense interest over the next few months as EPA evaluates how it will handle the issues of an endangerment finding and any regulatorysystem it might attempt to enact outside of the Congressional action on climate change. In addition, the Obama Administration may see the ability to regulate GHG emissions without further legislation as leverage to push Congress to pass legislation. Industry and lobbyists would have less ability to influence an EPA rule than how Congress deals with all of the competing concerns in attempting to craft federal climate change legislation.
