EPA Poised To Issue Formal “Endangerment” Finding: Clean Air Law Was Designed To Focus On Local Pollutants, Not GHG

September 30, 2009

In June, the NAM filed comments with the Environmental Protection Agency (EPA ) urging federal regulators to avoid an “endangerment finding” that would trigger regulation of greenhouse gas (GHG) emissions under the Clean Air Act (CAA) and impact all sectors of the economy. Although the NAM expects a formal decision from EPA this fall, following completion of a review by the White House Office of Management and Budget (OMB), it is believed that EPA will release a “tailoring rule” in conjunction with “endangerment” to attempt to stem the tide of regulation the NAM opposes. EPA's legal authority to issue a tailoring rule, however, is questionable and may lead to additional regulatory uncertainty for manufacturers. While congressional debate on the climate issue remains on hold, the EPA moves forward on the regulatory front.

EPA proposed endangerment in April to respond to the 2007 Supreme Court decision in Massachusetts v. EPA that characterized carbon as a “pollutant” under the CAA and remanded to EPA the issue of whether or not carbon emissions constitute an endangerment. Last year the EPA issued an Advance Notice of Proposed Rulemaking (ANPR) inviting comments on the legal, operational and environmental challenges that would be posed by regulation of GHG emissions under the CAA. More than 1,200 NAM members signed a petition to EPA arguing against endangerment prior to the close of the formal comment period, a factor which may have prompted EPA to consider its expected tailoring proposal.

Triggering the various permitting programs under the CAA through an endangerment finding will add costly delays to manufacturers seeking to expand operations or upgrade their manufacturing processes in a manner that conserves energy. An endangerment finding would not only undermine recovery, but could also prevent the most environmentally sophisticated technologies from being incorporated into a manufacturer's operation. The clean air laws were designed to focus on local pollutants. GHG emissions, however, are global in nature and require a new framework. For more information, contact Bryan Brendle at bbrendle@nam.org.