By Leslie Z. Walker

On April 17, 2009, the U.S. Environmental Protection Agency (“EPA”) released a proposed finding under Section 202 of the Clean Air Act (42 U.S.C. § 7521(a)(1)) that greenhouse gases in the atmosphere endanger the public health and welfare. (See Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act.)

The decision implements the Supreme Court’s 2007 decision in Massachusetts v. EPA (2007) 549 U.S. 497, which found greenhouse gases meet the definition of air pollutants in Section 202(a) of the Clean Air Act, and the EPA Administrator must either determine whether emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; or describe why the science is too uncertain to make a reasoned decision.

After the decision in Massachusetts v. EPA, the EPA published an Advanced Notice of Public Rulemaking (“ANPR”). The ANPR did not make an endangerment finding under Section 202(a) but detailed the difficulties with using the Clean Air Act to regulate greenhouse gases.

Evidencing a change in policy, the EPA Administrator has now made the findings required by the Supreme Court. Under Section 202 of the Clean Air Act, the EPA Administrator must make two determinations: 1) whether air pollution may reasonably be anticipated to endanger public health or welfare, and 2) whether emissions of any pollutant from new motor vehicles or engines cause or contribute to this air pollution. Citing a number of considerations including the observed record on climate change and the ability to attribute these changes to the observed anthropogenic buildup of greenhouse gases in the atmosphere, the Administrator found:

  • Current and projected concentrations of six key greenhouse gases including carbon dioxide, methane, nitrous oxide, hydroflourocarbons, perfluorocarbons, and sulfur hexafluoride into the atmosphere threaten the public health and welfare of current and future generations.
  • Combined emissions of carbon dioxide, methane, nitrous oxide and hydrofluorocarbons from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key greenhouse gases and hence to the threat of climate change.

Unlike most EPA proposals under Section 202(a) of the Clean Air Act, the EPA did not propose a parallel standard for regulating motor vehicles and motor vehicle engines, likely due to the fact that both the Administrator and the President prefer to address the issue through comprehensive legislation to regulate greenhouse gas emissions and create the framework for a clean energy economy.

The proposed finding under the Clean Air Act was signed on April 17, 2009 and will be published in the Federal Register, beginning the sixty day comment period. A pre-publication copy is currently available. Public hearings on the proposed finding will be held in May in Arlington, Virginia and Seattle, Washington.

Cities and counties are well advised to address this issue as part of their land use approvals, starting with general plan adoption and amendments.

Leslie Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.