• EPA Solicits Comments on Advance Notice of Proposed Rulemaking for Greenhouse Gas Emissions
  • August 12, 2008 | Authors: Cyndy Day-Wilson; Greta Proctor
  • Law Firm: Best Best & Krieger LLP - San Diego Office
  • The U.S. Environmental Protection Agency (EPA) released on July 11, 2008 an Advance Notice of Proposed Rulemaking (Notice) on upcoming proposed greenhouse gas (GHG) regulations.  In response to the Supreme Court’s decision in Massachusetts v. EPA authorizing EPA to regulate GHG emissions under the Clean Air Act (Act), the Notice provides information and solicits public comments regarding possible regulatory approaches and technologies for reducing GHG emissions.  It also invites public discussion regarding the advantages, disadvantages, hurdles, and ramifications of regulating GHG emissions under the Act. Commenting on potential approaches to GHG regulation offers public agencies an opportunity to have some input on the ultimate shape of the regulatory scheme likely to be proposed in the future by EPA.

    The Supreme Court in Massachusetts v. EPA held that GHGs meet the Act’s definition of “air pollutant” and are subject to regulation upon an EPA determination that GHG emissions may reasonably endanger public health or welfare.  According to the Notice, regulation of GHGs under one section of the Act would have wide-ranging consequences on the rest of the Act.  For instance, regulation of GHG emissions from motor vehicles will trigger regulation of smaller stationary sources that also emit GHGs—such as apartment buildings, homes, schools, hospitals, and virtually every other sector of the economy.  The potential regulation of GHGs under any portion of the Act will have a profound effect on both the private and public sectors. 

    Because the implications of GHG emissions regulation under the Act are so far-reaching, the Notice summarizes critical comments and serious concerns raised by other federal agencies during interagency review.  The Notice identifies and explores the various provisions of the Act that may be applicable to regulate GHG emissions, as well as the potential issues arising from such regulation.  Because the Act may be ill-suited for the task of regulating global GHGs, the Notice also provides information regarding potential alternative legislation and overlap between such legislation and the Act.  In addition, the Notice describes and solicits comments on petitions received by EPA to regulate specific GHG emissions from sources other than new motor vehicles, including stationary sources, ships, aircraft, and nonroad farm and construction equipment.

    The comment period for the Advance Notice of Proposed Rulemaking for Regulation of GHG Emissions under the Clean Air Act ends 120 days from the date of its publication in the Federal Register (which has not occurred as of July 14, 2008).  Since EPA does not have a specific rulemaking proposal before it at this time, this request for comments may provide an opportunity to have some influence on the future form of any rules on GHG emissions.