In response to Congressional inquiries about how the EPA will respond to the Supreme Court’s directive in Massachusetts v. EPA, Robert J. Meyers, EPA’s Principal Deputy Assistant Administrator of Air and Radiation, testified last week before the House Subcommittee on Energy and Air Quality.  Regulations that EPA promulgates administratively in response to Massachusetts v. EPA would be separate and independent from potential Congressional legislation limiting greenhouse gas (GHG) emissions.

While stressing that EPA has not reached any conclusions for future regulations, Meyers laid out the potential for wide-ranging, costly regulation directly resulting from the Supreme Court’s decision.  Meyers noted that if the agency finds an endangerment to health and welfare under Section 202 of the Clean Air Act (CAA) it could “have ramifications for . . . other provisions of the Act.”

Meyers indicated that such a determination could require EPA to establish “permit requirements for facilities that were not [previously] the subject of” the CAA regulations.  This could include regulating emissions from “large commercial facilities, schools, hospitals, and residential apartment buildings or complexes.”

Although less apparent, Meyers also testified that an endangerment finding for auto emissions could require regulating GHG emissions under the national ambient air quality standards (NAAQS).  This would occur because the NAAQS provision, Section 108 of the CAA, uses the same “endanger public health or welfare” language to determine which air pollutants to regulate.  Regulating GHGs under NAAQS, however, raises significant practical and administrative problems.  NAAQS govern air quality at the local level, and all of the air pollutants that NAAQS regulates currently by NAAQS accumulate on a local or regional basis.  A familiar example is attempts to reduce particular matter emissions, which contribute to smog in large cities.

GHG emissions, however, are global in their nature - a ton of carbon dioxide in Arizona is the same as a ton of carbon dioxide in Afghanistan.  Meyers testified that because of the lack of local impact, “the entire country would be either in attainment or in nonattainment with the standard[.]”  He also estimates that, because of the difficulties in developing a standard for GHG emissions, it might “take a decade or more to complete the NAAQS process” - without even considering the inevitable lawsuits that could further delay implementation.

Representative John Dingell, Chairman of the House Energy and Commerce Committee, seized on this testimony to push for Congress to act on national GHG legislation.  “Frankly, the Supreme Court I think made a hideous mistake” and that it is now “our responsibility” to “write a law.”  Representative Dingell is expected to offer climate change legislation in the coming months.

President Bush will speak on the subject of climate change tomorrow afternoon.  In anticipation of the President’s remarks, it appears that key members of Congress and the White House are in agreement that having EPA take the lead role in regulating GHG emissions under the CAA is problematic.  It now appears certain that new EPA regulations will not be forthcoming this year, leaving Congress with the opportunity to take the lead in dealing with climate change.

For further information about this topic, please contact Akin Gump.