1. Endangerment and Cause or Contribute Findings for GHGs Scott Perry Assistant Counsel

2. Endangerment and Cause or Contribute Findings for GHGs Background: 10/20/1999 - International Center for Technology Assessment petitions EPA for rulemaking. 2/8/2003 - EPA denies petition. 4/2/2007 - U.S. Supreme Court decides Massachusetts v. EPA. 7/30/2008 - EPA publishes ANPR on Regulating GHG’s under the CAA. 4/24/2009 - EPA proposes Endangerment and Cause or Contribute Finding.

3. Endangerment and Cause or Contribute Findings for GHGs Proposed finding only – Public hearings May 18 and 21 – Public comments due June 23 Final action on findings will not automatically impose duties on regulated community No standards have been proposed yet – Expect to see proposed standards in “several months”

4. Endangerment and Cause or Contribute Findings for GHGs Section 202(a)(1) of the CAA: “The Administrator shall by regulation prescribe (and from time to time revise) * * * standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [her] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.’’

5. Endangerment and Cause or Contribute Findings for GHGs Issue 1 – Air Pollutant ‘‘Any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air…” Massachusetts v. EPA – “Without a doubt”

6. Endangerment and Cause or Contribute Findings for GHGs Issue 2 - Endanger Public Health or Welfare – Act to prevent harm from occurring – Absolute certainty of endangerment not required “reasonably be anticipated” – Cumulative impact of all sources – Risk to all parts of the population

7. Endanger Public Health or Welfare Continued Ethyl Corp v. EPA: ‘‘[m]an’s ability to alter his environment has developed far more rapidly than his ability to foresee with certainty the effects of his alterations.’’ Massachusetts v. EPA: ‘‘the Clean Air Act ‘and common sense* * * demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.” EPA propose that CO2, CH4, N2O, HFCs, PFCs and SF6 endanger public health and welfare. Proposal is based on best available scientific information - Technical Support Document relies on IPCC and CCSP

8. Endangerment and Cause or Contribute Findings for GHGs Issue 3 - Cause or Contribute: – Need not be the sole source or even major cause of pollution – only “contribute”. – Absolute certainty not required I n the Administrator’s judgment causes or contributes EPA proposes that CO2, CH4, N2O, HFCs cause or contribute to air pollution which may reasonably be anticipated to endanger public health and welfare.

9. Endangerment and Cause or Contribute Findings for GHGs Future Action If a final finding of endangerment and cause or contribute is made, regulations are required: “The Administrator shall by regulation prescribe * * * standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [her] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.’’ Standards will be proposed in several months Litigation and/or Congressional action

10. Endangerment and Cause or Contribute Findings for GHGs Relevant documents available at: http://www.epa.gov/climatechange/endangerment.html