Energy and Environment MonitorOn April 24, 2009, newly anointed…uh…appointed EPA Administrator Lisa Jackson proposed to find that green house gasses in the atmosphere “endanger the public health and welfare of current and future generations.” 74 Fed Reg 18886, April 24, 2009. Administrator Jackson notes in her proposed finding that there are high atmospheric levels of green house gasses and that “[t]hese high atmospheric levels are the unambiguous result of human emissions, and are very likely the cause of the observed increase in average temperatures and other climatic changes.” (emphasis supplied).
The proposal adds that “the effects of climate change observed to date and projected to occur in the future--including but not limited to the increased likelihood of more frequent and intense heat waves, more wildfires, degraded air quality, more heavy downpours and flooding, increased drought, greater sea level rise, more intense storms, harm to water resources, harm to agriculture, and harm to wildlife and ecosystems--are effects on public health and welfare within the meaning of the Clean Air Act.”
The Administrator proposes to find that atmospheric concentrations of six greenhouse gasses endanger public health and welfare within the meaning of Section 202(a) of the Clean Air Act. The proposal applies to carbon dioxide, methane, nitrous oxide, hydroflourocarbons, perflourocarbons, and sulfur hexafluoride.
In a second important part of the proposal, the Administrator also proposes to find that the combined emissions of carbon dioxide, methane, nitrous oxide, and hydroflourocarbons from new motor vehicles and new motor vehicle engines “are contributing to the mix of greenhouse gasses in the atmosphere” and the proposal therefore includes these gasses from motor vehicles as endangering public health and welfare under Section 202(a) of the Clean Air Act.
Significantly, the Administrator admits that “[t]here are other greenhouse gasses and aerosols that have warming (and cooling) effects but are not being included in the proposed definition of air pollution.” Thos other gasses in include:
– Water vapor, excluded because direct emissions from human activities have only a negligible effect on atmospheric water vapor;
– Chloroflourocarbons and Hydrochloroflourocarbons, excluded because they “have not been a priority for the scientists and policy analysts involved in studying climate change, and are not a priority for the Administrator in this action;”
– Troposhperic ozone, excluded because it is a short lived gas so its global heating effect is more uncertain;
– Black carbon, excluded because there is considerably more uncertainty associated with black carbon’s warming effect compared to the estimated warming effect of the six long-lived greenhouse gasses;
– and a category called “other short-lived precursor gases,” excluded because the total global radiative forcing contributions of these compounds is not yet available
EPA notes that the Administrator does not need to have scientific certainty to make endangerment finding but “must exercise reasoned decision making, and avoid speculative or crystal ball inquiries.” 74 Fed Reg 18890. The Administrator adds that “[i]n the context of climate change…the Administrator should take account of the most catastrophic scenarios and their probabilities.” 74 Fed Reg 18890/2.
The proposal provides four conditions that EPA believes the Administrator is required to meet in making the finding, including that:
1. “The Administrator may be called upon to make decisions while recognizing the uncertainties and limitations of the data or information available, as risks to public health or welfare may involve frontiers of scientific or medical knowledge.”
2. “The Administrator must exercise reasoned decision making, and avoid speculative or crystal ball inquiries.”
3. “The Administrator is to consider the cumulative impact of sources of a pollutant in assessing the risks from air pollution…”
4. “The Administrator is to consider risks to all parts of our population, including those who are at greater risk for reasons such as increased susceptibility to adverse health effects.” 74 Fed Reg 18890/3
EPA notes, in addition, that “[t]he phrase ‘may reasonably be anticipated’ and the term “endanger” authorize, if not require, the Administrator to act to prevent harm and to act in conditions of uncertainty.” 74 Fed Reg 18891/1 (emphasis supplied).
Comments are sought regarding the data on which the proposed findings are based, the methodology used in obtaining and analyzing the data, and the major legal interpretations and policy considerations underlying the proposed findings.
Comments must be submitted on or before June 23, 2009, and may be made by
- Federal Rulemaking Portal: http://www.regulations.gov
- Email: GHG-Endangerment-Docket@EPA.gov
- Fax: (202) 566-1741
- Mail: EPA, EPA Docket Center (EPA/DC), Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0171, 1200 Pennsylvania Avenue, NW, Washington, DC 20460
Comments should be directed to: Docket ID No. EPA-HQ-OAR-2009-0171
The environmental community endorses the proposal. Phil Radford, Executive Director of Green Peace USA, was quoted after the proposal saying “[o]nce the administration issues the final declaration, the Clean Air Act is triggered, giving the administration sweeping authority to decide how to reduce global warming pollution from power plants, vehicles, and other sources, how much, and how fast. Obama's landmark proposal means that the administration no longer has to go through Congress to make the green economy a reality. No horse-trading with hostile Republicans. No need to throw tens of billions of dollars at the oil and coal industries to win the votes of polluter-friendly members of Congress. No need for sixty votes in the Senate (or even, for that matter, fifty). It will be the EPA looking at the science, listening to public comment and deciding how best to protect the planet, public health and the economy. Make no mistake; this is hardball. But for better or worse, hardball is what it's going to take to solve the climate crisis, create a green economy and meet the president's healthcare goals. At the end of the day, President Obama can't afford to let Congress set the schedule—or unilaterally decide the fate of the planet.”
This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.
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