• EPA Finds Carbon Dioxide a Threat to Human Health and the Environment
  • April 29, 2009 | Author: Harvey M. Sheldon
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • The United States Environmental Protection Agency (EPA) has determined that carbon dioxide is a danger to human health and the environment. This finding was issued today by EPA Administrator Lisa Jackson, under the agency’s Clean Air Act authority to regulate harmful emissions.

    Carbon dioxide is a normal constituent of human and animal breath exhalation and a necessary source of energy for plant life on Earth. Its current concentration in the earth’s atmosphere is about four one-hundredths of one percent. But EPA has made a formal finding that there is a significant danger due to the capacity of carbon dioxide and other so-called “greenhouse” gases to retard and gain some heat from reflected light-related energy waves that would otherwise dissipate in outer space from the Earth’s surface.

    This finding will be hailed by those who believe that the planet is threatened with possibly catastrophic warming. Although there are significant contrary skeptical views, EPA has found overwhelming evidence of harm. The finding states: “These high atmospheric levels [of greenhouse gases] are the unambiguous result of human emissions, and are very likely the cause of the observed increase in average temperatures and other climatic changes.” Courts generally defer to an agency’s “expertise” and will not overturn findings unless they are shown to be arbitrary or without substantial evidence. The EPA’s finding is expected to be open to comment for at least 60 days.

    The EPA also made a determination that new motor vehicle engines are a cause of the harmful gasses. If, as is likely, the agency later proceeds to demand carbon dioxide control not only from motor vehicles, but also stationary sources, American industry and commerce will face regulations that could require substantial process changes. Given that carbon dioxide is a natural by-product of fuel combustion, both those regulated and the regulators themselves will have an extremely challenging time.

    The Clean Air Act is acknowledged by many experts, including carbon control advocates and the Obama Administration, as being an inappropriate tool for carbon reduction. Politically, there is already talk about carbon control advocates and the Administration using the Clean Air Act designation of CO2 as a club with which to threaten the regulated community. They will seek to get agreement on carbon control legislation (e.g. cap and trade or tax legislation) that is more rationally designed to tackle the regulation and reduction of carbon emission than the Clean Air Act; in return, they would write greenhouse gas control out of the Clean Air regulatory regime.

    On March 10, 2009 the EPA proposed the first national comprehensive system for reporting emissions of carbon dioxide and other greenhouse gases produced by major sources in the United States. The regulation is open for comment. If adopted, it will require that companies with significant greenhouse gas emissions keep careful tabs on those emissions and report them to the EPA. If this proposal is approved as a rule, as is expected, it will likely provide data that will constitute a major basis for future carbon control. Under the proposed rule, data collection is required to begin as of January 1, 2010.