The EPA regulatory option

Two days ago, I wrote in this blog about the difference between passing a comprehensive climate change bill and not doing so to focus on the fact that there are “costs” to doing nothing (quite large costs as I described).  However, a sharp eyed observer noted that even if the US Congress doesn’t pass a comprehensive greenhouse gas emissions limitation bill, that the EPA itself is poised to step in and regulate greenhouse gases under the Clean Air Act.

This is an excellent point.  While it doesn’t take away from the need to focus on the “do nothing” approach, the reader is absolutely right that failure to pass a comprehensive federal bill still leaves us a long way from “doing nothing.”  Without any comprehensive bill to preempt them, California will start regulating greenhouse gases economy-wide in 2011, and the Northeast States are already rationing rights for power plants to emit carbon dioxide.  Couple that with the state groupings that are going to cap and trade among themselves and over half of the US economy will be in a GHG regulated environment.

But the big kahuna is the EPA.  It has already proposed to regulate greenhouse gases from mobile sources under the Clean Air Act pursuant to the court order in Massachusetts v. EPA case, and yesterday, EPA Administrator Lisa Jackson indicated that the finding and requirement for mobile sources will also begin the process of  triggering obligations under the Clean Air Act for the Agency to impose permitting and technology requirements on stationary sources of GHG emissions. Under the plain language of the Clean Air Act, such requirements potentially would extend to tens of thousands of relatively small facilities.

While the American Chamber of Commerce organization has instituted a law suit requiring that the EPA hold an “on the record” hearing to prove the scientific basis of its finding that GHGs endanger human health (the endangerment finding), this suit will not get very far.  The procedure followed by the agency is legally sufficient under the Administrative Procedures Act, and the scientific evidence that greenhouse gases contribute to climate change and thus human harm are overwhelming.  The Supreme Court itself seemed to reject any possibility that the EPA could fail to find that greenhouse gases endangered human health when it declared that EPA could NOT conclude that greenhouse gases were not air pollutants: The Clean Air Act’s sweeping definition of “air pollutant” includes “ any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted*529 into or otherwise enters the ambient air … .” § 7602(g) (emphasis added).

On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” FN25 Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical … substance [s] which [are] emitted into … the ambient air.”

The statute is unambiguous.