The day after Thanksgiving was the deadline for submitting comments to the Environmental Protection Agency (EPA) on its Advanced Notice of Proposed Rulemaking (ANPR), “Regulation of Greenhouse Gases under the Clean Air Act.” The ANPR is EPA’s preliminary response to the Supreme Court global warming case, Massachusetts v EPA (April 2, 2007). EPA invited public comment on literally hundreds of issues but the main issue in dispute is whether EPA should issue a finding under Section 202 of the Clean Air Act (CAA) that greenhouse gas (GHG) emissions from new motor vehicles “cause or contribute to air pollution” that “may reasonably be anticipated to endanger public health or welfare.”
In two separate detailed comments (see here and here) and a more general comment co-signed by 31 other free-market and conservative organizations, the Competitive Enterprise Institute (CEI) explains that an endangerment finding would trigger a regulatory cascade throughout the Clean Air Act, imposing potentially crushing burdens on regulated entities, environmental agencies, and the economy. For example, tens of thousands of previously unregulated buildings and facilities could face new regulation, monitoring, controls, and penalties under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program, creating a massive roadblock to new construction and economic development.
In Massachusetts, the Court said that EPA does not have to make an endangerment finding if it provides a “reasonable explanation” why it cannot or will not do so. CEI’s comments present several compelling reasons:
- An endangerment finding would set the stage for multiple policy disasters no Congress would ever approve.
- The only way EPA can regulate GHG emissions under the CAA without risk of administrative chaos and economic devastation is to flout statutory language and effectively amend the Act. Had the Justices known in 2006 and early 2007 what the ANPR and other analyses have since brought to light about the irrational and destructive burdens an endangerment finding would trigger, they likely would have decided the case differently.
- EPA cannot establish GHG emission standards for new motor vehicles yet “avoid inconsistency” with the fuel economy standards enacted by Congress in the 2007 Energy Independence and Security Act.
- EPA cannot coherently define the “air pollution” related to GHG emissions, hence lacks the requisite subject matter on which to make an endangerment finding.
- Persistent uncertainties regarding climate sensitivity to rising GHG concentrations, the implausibility of climate disaster scenarios, the divergence between model predictions and actual temperature data, and historic declines in U.S. mortality due to extreme weather, air pollution, heat waves, and malaria despite increases in global temperatures make it unreasonable at this time to anticipate endangerment of public health and welfare from global warming.
The U.S. Chamber of Commerce has a Web site with links to the ANPR, EPA’s regulatory docket, the U.S. Chamber’s PSD compliance burden study, industry-specific impact assessments, legal research, and a page featuring comments by almost two dozen organizations. President-elect Obama’s would be well advised to spend several days reviewing the information and analyses on this site.
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