Monday, December 7, 2009

EPA Announcement on Greenhouse Gas Regulation

The EPA announced today that it is prepared to make a final "endangerment" finding for various greenhouse gases (GHGs), which is the threshold requirement for regulating them as pollutants under the Clean Air Act (see here). In other words, it is preparing to finalize the 416-page proposed rule it promulgated several months ago.

The rule itself is remarkable and controversial in several respects, including an effort to reduce the applicability of greenhouse gas regulations by redefining statutory language on what counts as a "major" source, subject to regulation. No doubt, if and when the rule is finalized, it will be subject to litigation, which could take a year or more. It is not obvious to me that the rule would survive judicial review, given that the EPA's interpretation of "major" conflicts with the plain language of the statute.

However, I don't think EPA really wants to finalize the rule. I've always suspected that the purpose of the proposed rule, in the first place, was to light a fire under Congress to enact special legislation to regulate greenhouse gas emissions in a more suitable and efficient fashion than the Clean Air Act provides. By threatening a patently more expensive regulatory solution, the agency creates incentives for regulated industries to support an alternative legislative solution, which they otherwise might oppose. With increased industrial support for a legislative solution, it becomes increasingly difficult for members of Congress to stand in opposition.

Moreover, it is no surprise that EPA timed it's announcement about the final rule to coincide with the start of the international climate change meetings today in Copenhagen. The EPA's announcement may help to salvage US credibility at the meetings, giving President Obama something positive to say about US climate policy as he attempts to broker a deal during his appearance on the final day of the meetings.

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