EPA Issues Endangerment and Contribution Findings:

Yesterday, as expected, the U.S. Environmental Protection Agency issued a proposed finding that emissions of six greenhouse gases, including carbon dioxide, pose a threat to public health and welfare due to their contribution to global warming. The EPA further found that the emission of such gases from motor vehicles contribute to dangerous concentrations in the atmosphere. The EPA announcement is here.

The proposed findings will now go through a 60-day public comment period. Shortly thereafter, the findings will be finalized. Industry and anti-regulatory groups will almost certainly challenge the findings in court, and their legal challenges will almost certainly fail. Even if one doubts the accumulated scientific evidence that anthropogenic emissions of greenhouse gases contribute to climate change and that climate change is a serious environmental concern, the standard of review is such that the EPA will have no difficulty defending its rule. Federal courts are extremely deferential to agency assessments of the relevant scientific evidence when reviewing such determinations. Moreover, under the Clean Air Act, the EPA Administrator need only "reasonably . . . anticipate" in her own "judgment" that GHG emissions threaten public health and welfare in order to make the findings, and there is ample evidence upon which the EPA Administrator could conclude that climate change is a serious threat. This is a long way of saying that even if climate skeptics are correct, the EPA has ample legal authority to make the endangerment findings.

Once the findings are finalized, the EPA will then be required to develop regulatory standards for new motor vehicles under Section 202 of the Act. As a practical matter, the EPA will also have to prepare to regulate greenhouse gas emissions under other portions of the act, as the relevant endangerment findings necessary to trigger such regulation are effectively identical to that which triggers motor vehicle emission regulation under Section 202. Even if the EPA sought to resist such regulation, it would be relatively easy to force the EPA's hand through additional citizen suits, much like the suits that set the EPA on this course in the first place.

Now that the EPA is on course to set greenhouse gas emission standards for new motor vehicles, it will be interesting to see how the Agency handles California's request for a Clean Air Act waiver for its own state-level vehicle emission standards. One of California's arguments was that it was particularly concerned about (and threatened by) climate change, and thus wanted to adopt its own regulations. But if the EPA is going to set national greenhouse gas emission standards, it is not clear why California should be able to have standards of its own. The automakers, for their part, will certainly argue that a single federal standard is more efficient and will impose fewer costs on consumers. Furthermore, given the global nature of climate change, the argument for allowing an individual state to go its own way is much weaker than where environmental concerns are more localized. And, if the new federal standard ends up being as stringent as those developed by California, the waiver issue would be moot.

Regulating greenhouse gases under the Clean Air Act will not be a particularly cost-effective way to reduce the nation's greenhouse gas emissions. The EPA and White House understand this, but they also recognize that, under Massachusetts v. EPA, the agency does not have much choice. Moreover, the threat of Clean Air Act regulations on greenhouse gases will create significant pressure upon Congress to replace such regulation with some alternative, such as the cap-and-trade program. I suspect this is one reason the Administration has not complained too much about Congress refusal to embrace cap-and-trade in the budget. It's okay to set climate policy aside now, they could reckon, as there will be significantly more political pressure to act on the issue later. Perhaps by then there will also be greater political willingness to consider alternatives to cap-and-trade.