It’s been slightly more than two years since the United States Supreme Court ruled in Massachusetts v. EPA that greenhouse gas emissions were pollutants under the Clean Air Act. In a delayed response (it took a change in Administrations) the EPA issued its long awaited Proposed Endangerment Finding for Greenhouse Gases (GHGs) under the Clean Air Act last Friday.
Whether the proposed finding will lead to regulation of GHGs as pollutants under the Clean Air Act isn’t clear. The other possibility being considered in Washington is the Waxman-Markey Bill which was released in discussion draft form in late March. The Waxman-Markey Bill would establish a cap-and-trade program for GHGs and specifically prevents the EPA from using the Clean Air Act to regulate greenhouse gases. The Obama Administration is said to prefer cap-and-trade legislation to EPA rulemaking and likely is using the threat of EPA regulation as leverage to get Congress to act.
Any EPA rule will have to undergo a comment period, and the betting is that no matter what rule they come up with, someone won’t like it.
If this endangerment finding does result in a EPA rule to regulate GHG emissions under the Clean Air Act, lawsuits are likely to quickly follow. If it spurs forward cap-and-trade legislation, who gets capped and who can trade carbon credits will greatly impact an entity’s costs and revenues depending upon which side of that dividing line it falls on.
--Paul Gosselink
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