Client Alert Newsletter

Environmental Groups Petition EPA to Regulate GHGs as Criteria Pollutants

On December 2, 2009, two environmental groups filed a petition with the U.S. Environmental Protection Agency ("EPA") requesting that EPA regulate greenhouse gases (GHGs) as "criteria pollutants" under the Clean Air Act ("CAA"). If EPA ultimately sides with the petitioners, individual states would be required to develop state implementation plans (i.e., regulations) to meet national GHG standards set by EPA similar to the way that states do for other criteria pollutants such as sulfur dioxide, nitrogen dioxide, particulate matter and lead. While it is too early to tell whether the petition will lead to any sweeping regulatory changes, at a minimum the threat that such regulations may be required under the existing provisions of the CAA places increased pressure on Congress to pass legislation that specifically addresses climate change.

The petition states that EPA is required to issue an "endangerment finding" for GHGs under Section 108(a) of the CAA primarily because EPA has already concluded under Section 202(a) of the CAA that GHGs emitted from mobile sources endanger public health and welfare as part of its response to the Supreme Court's decision in Massachusetts v. EPA, and that the "endangerment" standards of Section 108(a) and 202(a) are nearly identical. The petition next argues that once EPA makes this "endangerment finding," Sections 108 and 109 require EPA to add GHGs to the list of criteria pollutants, and to issue air quality criteria and national ambient air quality standards (NAAQS) for GHGs within twelve months. According to the petitioners, each GHG should have its own NAAQS, with the NAAQS for carbon dioxide set at 350 parts per million. Once EPA sets these NAAQS, Section 110 then requires each state to update their state implementation plans (i.e., adopt new regulations) to achieve the NAAQS for GHGs. More specifically, due to the global dispersion of GHG emissions, EPA should allocate to each state a proportional GHG emission reduction target and each state would then adopt regulations to meet that target. The petition notes that many states are already implementing GHG reduction plans, thereby demonstrating the feasibility of this approach.

This petition is the latest illustration of the potential "cascade" of new regulations that many fear will be required under the Clean Air Act now that EPA has finalized its proposed "endangerment finding" under Section 202(a). Notably, when the debate over climate change legislation began in earnest earlier this year, some argued that the possibility of GHG regulation under the CAA would spur Congress to pass a cap-and-trade bill. While climate change legislation was passed by the House in June, similar legislation is currently stalled in the Senate, with an eye towards a floor vote in Spring 2010. For an update on federal climate change legislation, click this link.