EPA Moves One Step Closer to Regulating Greenhouse Gas Emissions


The EPA yesterday announced that it sent to the White House its final endangerment finding. An endangerment finding paves the way for the EPA to regulate greenhouse gases under the Clean Air Act.

 In April, the EPA announced its findings (and technical support document) that greenhouse gases threaten the public health and welfare. EPA’s finding was in reaction to the U.S. Supreme Court’s decision, Massachusetts v. EPA. In that landmark decision, the Court found that greenhouse gases may be air pollutants covered under the Clean Air Act if the EPA Administrator determines that such emissions cause or contribute to air pollution and reasonably can be anticipated to endanger public health or welfare.

The EPA’s action could have an effect on the climate change legislation currently pending in Congress. If Congress does not enact climate change legislation, the EPA has announced that it will move forward with regulations that potentially could be much more stringent and harder to comply with than the currently drafted climate change legislation. This has led some larger utilities to call on Congress to pass federal climate change legislation. According to the Wall Street Journal, some power companies prefer a cap-and-trade program as opposed to EPA regulations because the former gives utilities greater flexibility. Some utilities also believe that a federal cap-and-trade legislation would be less costly to comply with than regulations under the Clean Air Act.

As we’ve previously reported, it’s not entirely certain that the Senate will be able to pass comprehensive climate change legislation this year due to other major pending issues, such as the health care legislation and annual agency spending bills. This kicks the controversial climate change legislation into an election year, which may make it difficult for the Senate to reach the necessary votes (60) to stave off a filibuster.