Posted by: Steven M. Taber | April 1, 2008

One Year Later: Whither the EPA After Massachusetts v. EPA?

On April 2, 2007, the United States Supreme Court ruled in Massachusetts v. EPA, that the Environmental Protection Agency already has the authority to regulate greenhouse gas emissions under the Clean Air Act and must make an endangerment assessment when it can.

Almost a year later, and several months after he announced that he would have proposed regulations on the books, EPA Administrator Stephen Johnson stated in a letter issued on March 27, 2008, that the EPA would not issue any regulations, but instead would issue an Advance Notice of Public Rulemaking. This means that a proposed regulations would not be finalized until early next year at the earliest. Although the delay in the promulgation of the proposed regulations should not have come as too much of a surprise, since Administrator Johnson hinted at it in testimony before the House Select Committee on Energy Independence and Global Warming:

In view of these potential effects of Clean Air Act regulation, we are continuing to evaluate the availability and potential use of various CAA authorities for GHG mitigation, to determine the best overall approach for handling the challenge of global climate change for all sources, both mobile and stationary. While we continue to make progress in developing an approach, I cannot now commit to a certain date by which we will have a fully articulated approach in place or a response to the Massachusetts case completed.

This certainly made the conservative think tanks, like the Heritage Foundation, the Washington Legal Foundation and various trade association happy. Their concerns were related mainly to the effect EPA’s regulatory action would have on Prevention of Significant Deterioration (PSD) on stationary sources.

On the other side, though, Sen. Barbara Boxer was not pleased:

For nearly eight years, this Administration has tried to duck its obligation to address global warming pollution. A year ago, the Supreme Court ruled that greenhouse gases are covered under the Clean Air Act. Now, instead of action, we get more foot-dragging.

Rep. Edward J. Markey, Chairman of the House Select Committee on Energy Independence and Global Warming was equally upset with the EPA’s stalling:

This is the latest quack from a lame-duck EPA intent on running out the clock on the entire Bush Presidency without doing a thing to combat global warming. The planet is sick, and instead of rushing to provide emergency medical attention, the Bush Administration has said ‘take 2 aspirin and call me after I leave office.’

What is left for us to do?

  1. The public must comment early and often that CO2 must be regulated. Instead of viewing the public comment with disdain, the American public should make its voice heard as what it believes should be done about global warming in general and CO2 in particular.
  2. The public must inform their elected officials – state, local and federal – of their beliefs and encourage them to comment on the need for regulation of CO2.
  3. If there are fears from industry that regulatory action will have unintended effects on industry, those fears should be addressed. If the effects are intended, then industry must be informed of that as well so that they can plan for the regulations.

Administrator Johnson’s capitulation (once again) to the White House may have been cowardly, but the issue of CO2 regulation is too important to get caught up in finger pointing and name calling. The behind the scenes machinations that went on with regard to the secondary standard for ozone (see John Walke’s “Science Decider in Chief”) may lead one to believe that there are those at the EPA who want regulation of CO2, but there just is not the political will at the top. The public must inform the EPA of its position on CO2, once again, so that those at the top will have no choice but to pay attention.

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