Amid the frenzied run-up to Copenhagen, EPA announced its much awaited final “endangerment finding” under the Clean Air Act, paving the way for federal regulation of greenhouse gases. And, of course, paving the way for new rounds of litigation. Issued in response to the Supreme Court’s 2007 holding in Massachusetts v. EPA, the endangerment finding relates specifically to emissions from new motor vehicles. Pursuant to section 202(a) of the Clean Air Act, EPA found that emissions of greenhouse gases from vehicles contribute to air pollution that endangers public health and welfare. With this finding in hand, EPA will now move forward to finalize higher fuel economy standards for new cars and trucks, starting with model year 2012.
The endangerment finding is widely viewed as a strategic move designed to bring Congress to the table on climate change legislation. In something of a game of chicken, EPA has for months warned that it will be compelled to regulate greenhouse gas emissions under the Clean Air Act if Congress doesn’t act. The Administration’s hand was finally forced by the need for the U.S. to offer some modicum of progress heading into the COP15 negotiations. Many believe that the Administration has upped the ante in a high stakes gambit to get a cap-and-trade bill passed this session, before the full weight of the endangerment finding makes itself felt in regulatory proposals. But now that EPA has pulled the endangerment trigger, others argue that the pressure on Congress to act will actually dissipate. Nervous conservative Democrats, this argument goes, now have an excuse not to move climate change legislation because EPA is addressing the issue. Perhaps as important, they have a ready scapegoat if public sentiment turns sour. It’s hard to guess how the politics will play out.
But can we (and should we) put the genie back in the bottle? A few days before the EPA announcement, two environmental groups filed a petition to establish national pollution limits for greenhouse gases under section 108(a) of the Clean Air Act. Section 108(a) uses the same endangerment language as section 202(a), but triggers the regulation of stationary pollution sources rather than motor vehicles. The petition asks EPA to set national caps, so-called National Ambient Air Quality Standards, for greenhouse gases, including an upper limit of 350 ppm for carbon dioxide. The establishment of national pollution limits would require states to amend their State Implementation Plans to provide for attainment of the caps.
Some national environmental groups have dismissed the petition as a pointless political statement that should be relegated to the bureaucratic dustbin. They prefer to have EPA move forward using new source performance rules and national performance standards for targeted industrial sources. Their concern is a potential congressional backlash that could precipitate narrow legislation blocking EPA’s ability to act rather than the comprehensive climate change legislation we need. EPA has already signaled its intent to focus on performance standards for major sources with the “tailoring rule” it proposed in September. The Administrator’s polite but tepid response to the filing of the petition certainly wasn’t encouraging for those seeking more aggressive administrative action.
Yet the idea of attacking greenhouse gas emissions more broadly through national caps and State Implementation Plans is not so far-fetched. Unlike new source performance standards, SIPs need not be limited to major industrial polluters. They could be used to begin addressing carbon emissions associated with many other sectors traditionally regulated by states and municipalities. SIPs might, for instance, help reshape land use, transportation, agricultural, and forestry policies. Indeed, activities across many of these sectors are the very same ones that California is trying to reach with its far-sighted AB 32 and SB375 legislation.
We now have several decades of experience with this cooperative federalism approach to air pollution control. It would be a shame to disregard its possibilities in the greenhouse gas arena without more careful thought. If we are serious about global warming, it seems we ought to be willing, at least, to look – and look creatively – at every tool we have.