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	EPA Proposes Findings That Climate Change Threatens Public Health May 5, 2009 by Jacqueline L. McDonald jmcdonald@somachlaw.com

On April 17, 2009, the United States Environmental Protection Agency (EPA) issued proposed findings that a collection of gases, which are commonly referred to as “greenhouse gases,” contribute to air pollution that may endanger public health. While not necessarily surprising for Californians, whose own state government has blazed the trail of climate change regulation in recent years, these findings mark the federal government’s entrance into greenhouse gas regulation.

Background

In 1999, 19 private organizations petitioned EPA to regulate greenhouse gas emissions from motor vehicles pursuant to section 202(a) of the Clean Air Act. Section 202(a) of the Clean Air Act requires the EPA to:

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 2003, EPA entered an order denying the petition on the grounds that section 202(a) did not grant authority to issue mandatory regulations to address global climate change and, even if it did, EPA would be unwise to regulate global climate change based on the information then available. The State of Massachusetts, among others, challenged EPA’s decision in federal court.

In 2007, the United States Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act and subject to EPA’s regulatory authority. Massachusetts v. EPA, 549 U.S. 497 (2007). The Massachusetts decision required EPA to issue findings pursuant to section 202(a) of the Clean Air Act to determine: (1) whether emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare; or (2) whether the science is too uncertain to make a reasoned decision.

Proposed Findings

On April 17, 2009, in response to the Supreme Court’s charge, EPA proposed the following findings regarding greenhouse gases under section 202(a) of the Clean Air Act:

The Endangerment Finding: The current and projected concentrations of the mix of six key greenhouse gases — carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) — in the atmosphere threaten the public health and welfare of current and future generations.

The Cause or Contribute Finding: The combined emissions of CO2, CH4, N2O, and HFCs from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key greenhouse gases and hence to the threat of climate change.

The EPA concluded that greenhouse gas emissions are at unprecedented levels as a result of human emissions and that these high levels likely cause an increase in average temperatures and other changes in climate. The analysis further concluded that climate change impacts human health by creating a higher concentration of ground-level ozone, increased drought, more heavy downpours and flooding, more frequent and intense heat waves and wildfires, greater sea level rise, more intense storms, and harm to water resources, agriculture, wildlife, and ecoystems. Additionally, the analysis found that climate change has serious national security implications as scarcity of resources would provoke violence and, in turn, massive migration to more stabilized regions of the world.

Implications

The proposed findings, and any final action taken thereon, would not regulate activities of industry or others. Before imposing any regulation of greenhouse gases under section 202(a) of the Clean Air Act, EPA must follow a regulatory process and consider stakeholder input. At the same time, however, the Administration continues to press for comprehensive action by Congress to address climate change within a larger “clean energy economy” framework.

For more information about EPA’s proposed findings, please contact Jacqueline McDonald at jmcdonald@somachlaw.com. EPA published the proposed findings in the April 24, 2009 Federal Register, which is available online at http://epa.gov/climatechange/endangerment.html.

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