Environmental Protection

How Aggressively Will EPA Address Climate Change?

EPA won a decision at the D.C. Circuit in June 2012 allowing it to use its authority under the Clean Air Act to address climate change. With EPA Administrator Lisa Jackson leaving, how quickly will it act?

EPA already has taken action to address climate change based on the scientific consensus that greenhouse gases are causing significant changes to our climate, and the agency is now in a stronger position thanks to a June 26, 2012, decision in Coalition for Responsible Regulation v. E.P.A. by the U.S. Court of Appeals for the District of Columbia. The decision upheld a series of EPA greenhouse gas rules for mobile sources (cars and trucks) and stationary sources (commercial and industrial facilities) against all legal challenges. The decision is momentous in validating EPA's use of the Clean Air Act to address climate change.

The U.S. Supreme Court's decision in Massachusetts v. EPA in 2007 had set the stage. A coalition of parties brought litigation to compel EPA to use the Clean Air Act to address greenhouse gas emissions from mobile sources. The Supreme Court held that EPA had the authority to regulate greenhouse gases and was required to make a determination whether or not greenhouse gas emissions from human activities were causing or contributing to an endangerment of human health or welfare. But it did not order EPA to make a finding one way or the other. In response, EPA undertook two actions for mobile sources. In the Endangerment Finding in December 2009, the agency determined that greenhouse gases from human activities may reasonably be anticipated to endanger public health or welfare, which triggered the authority to regulate them. Then, in a joint action with the National Highway Traffic Safety Administration in May 2010, EPA issued the Tailpipe Rule, setting greenhouse emissions standards for cars and light trucks. These standards were effective on Jan. 2, 2011, and are expected to translate into a fuel efficiency standard of 35.5 miles per gallon in 2016.

But EPA did something of even greater significance: Through two other actions, it made stationary sources subject to permitting for greenhouse gas emissions. In a policy interpretation in April 2010 known as the Timing Rule, EPA concluded that stationary sources would be subject to such permitting under the Prevention of Significant Deterioration program (PSD) when the Tailpipe Rule became effective for cars. The problem is that carbon dioxide is generated in much greater volumes and by more activities than traditional pollutants. Many commercial and industrial facilities that were not previously subject to permits would now require them. To avoid imposing costly burdens, EPA issued the Tailoring Rule in June 2010. Different stationary sources would now require permits at different times, based on their levels of emissions. These levels (e.g., 75,000 and 100,000 tons per year) are much greater than the usual 100/250 tons per year threshold.

In Coalition for Responsible Regulation, Inc. v. EPA, some states and industrial groups claimed EPA overstepped its authority and that its rules would unfairly burden them. But the D.C. Circuit upheld the Endangerment Finding on the merits, upheld the Tailpipe Rule against a claim that EPA lacked authority to issue it, and upheld the Timing and Tailoring Rules.

The decision clears the way for EPA to make full use of its Clean Air Act authority to regulate greenhouse gas emissions. With President Obama's re-election and control of the Senate remaining in the hands of a Democratic majority, EPA's rules would seem to be safe. The larger question is whether climate change will emerge as a priority issue for Obama's second term, now that EPA Administrator Lisa Jackson has chosen to resign, and whether EPA will make full use of its considerable authority under the Clean Air Act to bend the curve of greenhouse gas emissions.

Editor's note: On Jan. 11, an advisory committee to the federal government released the draft 2013 National Climate Assessment, which lays out scientists' current understanding of climate change's domestic impacts and concludes U.S. voluntary emission reduction efforts cannot meet the targets set by international agreements. After the public, federal agencies, and the National Academies weigh in on the draft, it will be presented late this year to the U.S. Global Change Research Program, which will develop research priorities in light of it. To access the draft National Climate Assessment, visit www.ncadac.globalchange.gov.

About the Authors

Christopher Ahlers is a Staff Attorney in the Environmental and Natural Resources Law Clinic, having previously been an LLM Fellow. He helps to manage projects in collaboration and partnership with the Toxics Action Center. Chris brings to the clinic more than 16 years of experience as an attorney, including work in environmental due diligence investigations, environmental auditing, enforcement actions, CERCLA litigation, and brownfields redevelopment. He also teaches a course in Air Pollution Law and Policy. He earned a BA in government from Cornell University (Phi Beta Kappa), a JD from Boston College Law School, and an LLM, summa cum laude, from the Environmental LLM program at Vermont Law School in 2013. He is a member of the New York and Vermont bars. He is fluent in French and proficient in Spanish, Latin, and Ancient Greek.

John David Baumgarten, of Owensboro, Ky., is a second-year JD student and a staff editor at the Vermont Journal of Environmental Law (VJEL). Before coming to Vermont Law School, he was active in the Louisville poetry community and conducted ethnographic research about Appalachian substance abuse and urban food deserts. After graduation, he hopes to examine the relationship between the Eastern Kentucky opiate trade, culture, and environment, while pursuing studies in anthropology.

Jared E. Schroder, a second-year Vermont Law School JD student from Garden City, N.Y., is a staff editor at the Vermont Journal of Environmental Law (VJEL). He enjoys sailing, hiking, and bluegrass music. He plans to practice law with a focus on policy and public interest work.

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