EPA Makes Final Greenhouse Gas Endangerment Finding

On December 7, 2009, the Administrator of EPA issued a final “endangerment” finding under section 202(a) of the Clean Air Act that the current and projected concentrations of six key greenhouse gases threaten the public health and welfare of current and future generations. The Administrator also found that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.

EPA’s endangerment finding covers emissions of six key greenhouse gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

According to EPA, effects linked to climate change include hotter and longer heat waves that would threaten the health of the sick, poor, and elderly, and increases in ground-level ozone concentrations. They also include increases in tick-borne diseases, food- and waterborne pathogens, and airborne allergens from weeds and trees. Environmental and welfare effects include rising sea levels, more droughts from reduced snow-packs, more wildfires and insect outbreaks, and damage to ecosystems, the agency said. Climate change also may exacerbate problems that raise humanitarian, trade, and national security problems for the United States overseas, according to EPA.

The EPA's "endangerment finding" -- a key bureaucratic step in the regulatory process -- was seen as a message to Congress and Copenhagen, but it was also a belated response to an order from the U.S. Supreme Court, which ruled in April 2007 that carbon dioxide should be considered a pollutant under the Clean Air Act. As a result, the court said, the EPA had not only the power but the obligation to make an “endangerment” finding.

EPA said that the endangerment findings do not in and of themselves impose any emission reduction requirements but rather allow the agency to finalize the GHG standards proposed earlier this year for new light-duty vehicles as part of the joint rulemaking with the Department of Transportation.

EPA also said that the endangerment finding does not require the agency to set a National Ambient Air Quality Standard (NAAQS) for greenhouse gases. However, when EPA does issue final rules for light-duty vehicles, then the six greenhouse gases but would be considered “regulated pollutants” under that section of the Clean Air Act dealing with New Source Performance Standards (NSPS) and New Source Review (NSR).

On Sept. 30, 2009, EPA announced a proposed “tailoring rule” that is focused on large facilities emitting over 25,000 tons of greenhouse gases (GHG) a year. New and existing facilities would be required to obtain permits under the New Source Review (NSR) and Title V operating permits programs that would demonstrate they are using the Best Available Control Technology (BACT) to minimize GHG emissions.

"An endangerment finding from the EPA could result in a top-down command-and-control regime that will choke off growth by adding new mandates to virtually every major construction and renovation project," Thomas Donohue, president and CEO of the U.S. Chamber of Commerce, said in a statement.