Greenhouse Gas Endangerment Finding, Part 2:
The mysterious disappearance of last year's advance notice of proposed rulemaking
1 May 2009 in Regulatory Policy
In July 2008, the Environmental Protection Agency published an advance notice of proposed rulemaking that raised numerous issues concerning the regulation of greenhouse gas emissions through the Clean Air Act. Regulations.gov reports over 17,000 entries labeled as public comments.
In the April 2009 proposed endangerment finding, this ANPRM makes only a cameo appearance.
From page 18890:
On July 30, 2008, EPA published an Advance Notice of Proposed Rulemaking on "Regulating Greenhouse Gas Emissions under the Clean Air Act" (73 FR 44354) (ANPR). The ANPR presented information relevant to, and solicited public comment on, a wide variety of issues regarding the potential regulation of greenhouse gases under the CAA, including EPA’s response to the Supreme Court’s decision in Massachusetts v. EPA. Section V of the ANPR contained an earlier version of much of the material in this proposal, including the legal framework, a summary of the science of climate change, and an illustration of how the Administrator could analyze the cause or contribute element using information regarding the greenhouse gas emissions of the portion of the U.S. transportation sector covered by section 202(a). A July 2008 version of the Technical Support Document (TSD) for this proposal was also in the docket for the ANPR (EPA–HQ–OAR–2008–0318).
The ANPR also contained a summary of much of the work EPA had done in 2007 regarding draft greenhouse gas emission standards for light duty vehicles and trucks under section 202(a) of the Act. As noted earlier, EPA is currently developing proposed emissions standards related to today’s proposal. EPA expects that these proposed standards will be ready to propose for public comment several months from now.
Finally, the ANPR also discussed pending petitions under various sections of the Act requesting that EPA regulate greenhouse gas emissions from other mobile sources, as well as stationary source rulemakings (recently completed, ongoing or remanded) in which commenters suggested EPA regulate greenhouse gas emissions. EPA is continuing to evaluate its response to those other pending petitions and rulemakings and will address them in later actions.
In short, EPA proposes to generally rely on the administrative record for the ANPR without responding to the thousands of public comments it received. The Agency's references and responses to public comments on the ANPRM are so few that we have quoted them all below. In no instance does EPA identify the commenter(s) to whom it is responding.
References to ANPR Public Comments in the Proposed Endangerment Finding
Thus, contrary to the position set forth by at least one commenter on the Greenhouse Gas ANPR, the statutory language does not require that EPA prove the effects of climate change "beyond a reasonable doubt." Indeed, such an approach is inconsistent with the concepts of reasonable anticipation and endangerment embedded in the statute (p. 18892, footnote 11).
Comments on Elements of the Endangerment and Cause or Contribute Tests Made During the ANPR Public Comment Period
Certain comments submitted on the ANPR15 argued that when evaluating endangerment and cause or contribute, the Administrator is limited to considering only those impacts that can be traced to the amount of air pollution directly attributable to the greenhouse gases emitted by new motor vehicles and engines. Such an approach collapses the two prongs of the test by requiring that any climate change impacts upon which an endangerment determination is made result solely from the greenhouse gas emissions of motor vehicles. It essentially eliminates the ‘‘contribute’’ part of the ‘‘cause or contribute’’ portion of the test. This approach was clearly rejected by the en banc court in Ethyl Corp. 541 F.2d at 29 (rejecting the argument that the emissions of the fuel additive to be regulated must ‘‘in and of itself, i.e. considered in isolation, endanger[s] public health.’’). Moreover, it conflicts with an enumerated purpose of the 1977 CAA Amendments: "To assure consideration of the cumulative impact of all sources of a pollutant in setting ambient and emission standards, not just the extent of the risk from the emissions from a single source or class of sources of the pollutant; * * *" H.R. Rep. 95–294 at 49–50, 4 LH at 2516–17.
Nor does EPA agree with comments that argue the Administrator cannot make a positive endangerment or contribution determination unless the emissions reductions required by the resulting standards would "effectively mitigate" or "fruitfully attack" the impacts underlying the endangerment determination. Again, such an approach fails to appreciate the holistic approach that Congress adopted in 1977. Moreover, as the Supreme Court recognized, "[a]gencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop." Massachusetts v. EPA, 549 U.S. at 524 (citations omitted).16 The threshold endangerment and cause or contribute criteria are separate and distinct from the standard setting criteria that apply if the threshold findings are met, and they serve a different purpose. Indeed, the more serious the endangerment to public health and welfare, the more important it may be that action be taken to address the actual or potential harm even if no one action alone can solve the problem, and a series of actions is called for.
Importantly, these various narrow approaches to the endangerment and cause or contribute criteria would effectively preclude the Administrator from ever making a positive finding for a global phenomenon like climate change because the regulatory actions would always be limited to just part of the picture. Indeed, they would preclude the Administrator from making a positive finding for any complex pollution problem that cannot be solved by one regulatory action alone. This is contrary to Congress’ direction that the Administrator consider the whole picture when exercising her judgment about the critical issues of cause or contribute and endangerment to public health and welfare.
15 Numerous comments on the ANPR discussed the endangerment and cause or contribute findings, and set forth how various stakeholders believe EPA is compelled to make those findings. EPA has reviewed the comments on the ANPR, and EPA appreciates the work that went into them. While we are not responding to every comment received in today’s proposal, the Agency is taking this opportunity to respond to a few key comments related to the test that some stakeholders believe guides the Administrator when undertaking an endangerment analysis and cause or contribute evaluation. As noted above, commenters should submit to the docket for today’s action any comments they want EPA to consider as it makes a decision on this proposed determination.
(p. 18893, footnote 15).
The Administrator therefore disagrees with commenters on the ANPR who argue that when considering whether the atmospheric concentration of greenhouse gases may reasonably be anticipated to endanger public health or welfare, she must consider the impact from the regulation of greenhouse gases under the CAA following an endangerment finding. The Administrator also believes it is inappropriate, in considering whether greenhouse gases endanger public health or welfare, to consider potential private behavior aimed at alleviating some of the effects of climate change. Just as the Administrator would not consider, for example, the availability of asthma medication in determining whether criteria air pollutants endanger public health, so the Administrator will not consider private behavior in the endangerment determination at hand. On the contrary, ameliorative steps of that kind would attest to the fact of endangerment (p. 18894).
Some comments on the ANPR argued that when evaluating the contribution from new motor vehicles and engines, the Administrator needs to project what emissions would be after implementation of the fuel efficiency standards in the Energy Independence and Security Act of 2007 (EISA). Other comments noted that the Administrator should recognize that in the future the denominator of global aggregate emissions of greenhouse gases will increase as the numerator of new motor vehicle and engine emissions decreases. As noted above, the Administrator believes that the traditional practice of considering the recent motor vehicle emissions inventory as a surrogate for estimates for new motor vehicles and engines is appropriate. In general, the focus of the contribution test should be on current and near-term emissions. The current and near term emissions from the section 202(a) sources can be expected to impact atmospheric concentrations for many decades to come, given the long atmospheric life of the greenhouse gases. The Administrator is aware of the requirements of EISA, and she has concluded that the expected reductions in emissions from section 202(a) source categories would not affect her determination regarding cause or contribution. In addition to looking at absolute emissions comparisons, the Administrator also considered other relevant factors, as described below (p. 18906).
