This afternoon EPA unequivocally confirmed that the current administration will not propose, let alone implement, comprehensive greenhouse gas (GHG) regulation. In a long-awaited, 588-page Advance Notice of Proposed Rulemaking (“ANPR”), EPA surveys its Clean Air Act authority, outlines an analysis of whether GHGs endanger public health and welfare (and thus can constitute “regulated pollutants”), and reviews the applicability of climate change regulations under its stationary source, mobile source, and stratospheric ozone regulatory authorities. The Notice also opens a 4-month public comment period on the subject of GHG regulation.

In a rare move, the preamble to the ANPR opens with a personal “Preface from the Administrator” suggesting that the CAA is “an outdated law” that is “ill-suited for the task of regulating global greenhouse gases.” The ANPR follows the Administrator’s “Preface” with another 70 pages of signed statements and comments by key executive Agency officials voicing concern over the negative implications of regulating GHGs under the existing statute. Finally, concurrently with EPA’s release of the ANPR, the White House issued a statement that “the President and Chairman Dingell were right” and that “the ‘EPA staff draft’ would impose crippling costs on the economy in the form of a massive hidden tax, without even ensuring that the intended overall emissions reductions occur.”

This result is no surprise. The Administration has consistently rejected efforts to regulate GHGs under the CAA and released this ANPR as an official response to the 2007 Supreme Court decision in Massachusetts v. EPA. That case required EPA to determine whether GHG emissions from automobiles endangers public health and welfare. This ANPR is an attempt to evade the Supreme Court’s mandate, or at least push it off to the next President.

From a legal perspective, the Notice will have limited impact. EPA has emphasized that the ANPR is not a consensus document, and both Stephen Johnson (the EPA Administrator) and the White House have signaled that this notice is the last action EPA will take on this issue until after the inauguration of a new Administration. By issuing an ANPR rather than a traditional Notice of Proposed Rulemaking (“NPRM”), EPA has also ensured both that any future Administration’s effort to regulate GHGs under the CAA would have to traverse the entire rulemaking process and would not be able to rely on the current Administration’s efforts.

But while this notice has limited regulatory significance, the detailed analysis contained in the notice will likely frame future policy debate regarding: (a) using the CAA to regulate GHGs; (b) identifying specific amendments to the CAA necessary to support regulatory action; or (c) structuring a comprehensive legislative response to climate change. For this reason, climate change stakeholders are likely to consider the 588-page analysis as mandatory summer reading, with carefully crafted comments and advocacy to follow.

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