EPA's Endangerment Finding for Greenhouse Gases and the Potential Duty to Adopt National Ambient Air Quality Standards to Address Global Climate Change
Patricia Ross McCubbin
Southern Illinois University School of Law
July 22, 2009
Southern Illinois University Law Journal (Symposium Edition), Vol. 33, 2009
The U.S. Environmental Protection Agency (EPA or the Agency) recently announced its intention to make a finding under the Clean Air Act that greenhouse gases from new cars and light trucks endanger the public health and welfare by contributing to global climate change. That proposed endangerment finding and the vehicle emission standards that will follow are highly controversial, with industry representatives vigorously challenging EPA’s scientific conclusions. Of even greater controversy, however, is the possibility that issuance of the final endangerment finding will obligate EPA and the states to regulate greenhouse gases from nearly every sector of the economy with 'national ambient air quality standards,' the central program of the Clean Air Act that addresses air pollution all across the country. EPA believes those broad, national standards would be fundamentally inappropriate for greenhouse gases. The Agency’s concerns are shared by many regulated entities, as well as several states and environmental organizations. A few environmental advocates, however, see benefits in using this scheme to force widespread greenhouse gas emissions reductions, and have urged EPA to adopt the controversial standards. Reviewing the Clean Air Act and its legislative history, this article analyzes EPA’s legal obligation to adopt national standards for greenhouse gases once it finalizes the endangerment finding. While the statutory language might appear to give the Agency discretion not to do so, the article identifies a possible scrivener’s error – not previously discussed by EPA, the courts or others – that would require the Agency to issue those national standards. Whether a court will accept that new interpretation or, instead, find flexibility for EPA depends ultimately on whether the Agency persuasively demonstrates that national standards are unworkable for greenhouse gases and unnecessary in light of the other steps it is taking under the Clean Air Act. The article analyzes EPA’s claims on both scores, especially in light of the Massachusetts Court’s skepticism on the Agency’s climate change record. Although applying the current statute to greenhouse gases poses challenges, a skeptical court might very well conclude that the national standards can be sufficiently tailored so as to prove useful in our efforts to mitigate global climate change.
Number of Pages in PDF File: 40Accepted Paper Series
Date posted: July 25, 2009 ; Last revised: November 13, 2009
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