EnviroNotes

By Matt Gernand, Attorney, Environmental Law Department, Bingham McHale LLP

On July 11, 2008, the U.S. EPA released an Advanced Notice of Proposed Rulemaking (“ANPR”) on the regulation of greenhouse gases. The ANPR was issued in response to the U.S. Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which the court held that carbon dioxide and other greenhouse gases (“GHGs”) were pollutants as the term is defined in the Clean Air Act (“CAA”). The Massachusetts decision required the U.S. EPA to make a determination as to whether GHGs from mobile sources endanger human health or the environment.

The ANPR does not make this determination, but rather solicits comments on how the U.S. EPA should regulate GHGs. The ANPR, which is over 500 pages long, outlines the various provisions of the CAA that could be used to regulate GHGs and presents the challenges of regulating GHGs under each of the identified CAA provisions. Particularly, the ANPR discusses the ramifications of establishing a national ambient air quality standard (“NAAQS”) for greenhouse gases. Because GHGs are generally uniformly distributed across the earth, the U.S. EPA would likely be faced with designating the entire country as either attainment or nonattainment for the GHG NAAQS; thus, leading to a very unconventional, and likely futile, state implementation plan process. The ANPR also discusses the possibility of using the new source performance standard (“NSPS”) provisions of the CAA and the establishment of a cap-and-trade program for GHGs. However, the recent vacaturs of the Clean Air Mercury Rule and the Clean Air Interstate Rule call such a cap-and-trade approach into question. Finally, the ANPR discusses the impact the regulations would have on the PSD/NSR programs. If GHGs become regulated pollutants, than any source that emits greater than 250 tons of a GHG would be subject to the NSR/PSD programs. Such a threshold would require an extraordinary amount of commercial buildings to undergo preconstruction review.

As can be seen, the ANPR calls into question the present CAA’s ability to effectively regulate GHGs. In fact, in the preamble to the ANPR, the U.S. EPA Administrator, Stephen Johnson, stated that the CAA is an “outdated law…that…is ill-suited for the task of regulating global greenhouse gases.” However, given the Supreme Court’s mandate in Massachusetts, the U.S. EPA is eventually going to have to make an endangerment determination. If it finds that GHGs do endanger human health or the environment, Congress may need to enact radical changes to the CAA.

The public has until November 28, 2008 to comment on the ANPR which can be found at: www.epa.gov/climatechange/anpr.html.

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