US EPA finalizes finding that GHGs threaten the public health and welfare
The United States Environmental Protection Agency ("EPA") released its long-awaited finding that greenhouse gases endanger public health and welfare. Specifically, the EPA found that "current and projected concentrations of the six key well-mixed 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 decision does not impose immediate obligations on industry. However, it sets the stage for future EPA regulations and puts the pressure on Congress to finalize its climate change bill. It is also well-timed for the kick off of negotiations in Copenhagen.
The endangerment finding has been in the works for years. The EPA's finding was prompted by the US Supreme Court's 2007 decision in Massachusetts v. EPA in which the court held that the EPA had the authority to regulated GHGs under the Clean Air Act and that its decision not to regulate GHGs was, at the time, "arbitrary, capricious, or otherwise not in accordance with law." The EPA subsequently released a draft finding in April of 2009, which was open to public comment.
The endangerment finding cements the EPA's jurisdiction to regulate greenhouse gases. It was accompanied by a specific finding that "greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare." This "cause or contribute" finding will allow the EPA to move forward with its proposed light duty vehicle emissions standards. Canadians can likely look forward to similar standard being enacted in Canada.
Perhaps most importantly, the endangerment finding gives new context to the efforts in Washington to enact climate change legislation. If Congress is unable to pass a cap-and-trade bill, the EPA may step in and regulate emissions more generally. Most stakeholders would prefer emissions regulation to come from Congress, which is able to balance competing interests, rather than from the EPA, which may take a less compromising approach.