"EPA Makes Greenhouse Gas Endangerment Finding"
Sarah S. Brehm
Jones Walker Environmental & Toxic Torts E*Lert
January 4, 2010

On December 7, 2009, the Environmental Protection Agency (EPA) announced its final rule that six greenhouse gases "taken in combination endanger both the public health and the public welfare of current and future generations."1 This formal finding, which has been evolving since the 2007 Supreme Court decision of Massachusetts v. EPA, 549 U.S. 497, allows EPA to finalize proposed greenhouse gas emission standards for light-duty vehicles under §202 of the Clean Air Act. The endangerment finding also builds on other GHG rules announced the second half of 2009. 

In September 2009, the EPA issued a final mandatory reporting rule that requires suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more of GHGs per year to submit annual reports to EPA. Please click here to read "EPA Takes Steps Toward Regulating GHG Emissions," from Jones Walker's October 27, 2009, Environmental & Toxic Torts E*Lert. 

The endangerment finding might trigger additional regulations to restrict the amount of GHGs emitted from stationary sources. New stationary sources or significant modifications to existing stationary sources might now have to comply with best available control technology (BACT) requirements in clean air areas (prevention of significant deterioration program). The EPA is developing a GHG "tailoring rule" to clarify that the trigger for new source review is 25,000 tons per year of CO2 (as opposed to the 25 tons per year currently required for pollutants under the CAA). The anticipated "tailoring rule" will likely be tested in court.

Although this endangerment finding could open the door for EPA regulations, Administrator Lisa Jackson has publicly stated she believes a legislative solution is best. In mid-December, senators Cantwell (D) and Collins (R) introduced a 39-page bill that would require produces and importers of fossil fuels, but not users, to pay for "carbon shares." Unlike the House bill, and other Senate bills that have been introduced, the Cantwell-Collins idea cuts out the "trade" part of cap and trade, and it has received support from Republicans and moderates. The climate bill is currently being debated in Congress and its fate is unknown. 

1 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.  74 Fed. Reg. 66,496 (Dec. 15, 2009) (to be codified at 40 C.F.R. Ch. 1).