Ryan Whaley Coldiron Shandy

On April 2, 2007, in Massachusetts v. EPA, 549 U.S. 497 (2007), the United States Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act and held that the EPA must determine whether or not greenhouse gas emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.

On December 7, 2009, EPA officially determined that climate change caused by emissions of greenhouse gases threatens public health and the environment.  Since then, EPA received ten petitions – including petitions from the States of Texas and Virginia and the United States Chamber of Commerce – challenging the Endangerment Finding.  One of the contentions by the petitioners was that e-mails among scientists at the University of East Anglia's Climatic Research Unit prove that temperature data and trends supporting the Endangerment Finding were manipulated.

On July 29, 2010, EPA officially rejected the ten challenges by denying the petitions to review the Endangerment Finding.  According to EPA, the East Anglia e-mails are not a “smoking gun” that disproves the science behind the Endangerment Finding.  Further, EPA characterized the challenges as: “inadequate and generally unscientific arguments and evidence that the underlying science supporting the Findings is flawed, misinterpreted or inappropriately applied by EPA.” 

EPA published its rejection in the Federal Register on August 13, 2010: http://edocket.access.gpo.gov/2010/pdf/2010-19153.pdf.

What this means: while EPA’s Endangerment Finding does not itself impose any requirements on industry, the Endangerment Finding is a prerequisite to EPA’s regulation of greenhouse gas emissions for vehicles. Pursuant to the Supreme Court’s Massachusetts v. EPA opinion, the regulation of greenhouse gas emissions for vehicles triggers a duty to also regulate greenhouse gas emissions for industry.  For example, in the Spring of 2010, EPA finalized the “Greenhouse Gas Tailoring Rule”, which specifies that beginning in 2011, industrial projects that will increase greenhouse gas emissions substantially will require an air permit.