Looming EPA Issuance on Final Endangerment Finding Incites Litigation Threats

Reports from the past week allege that Environmental Protection Agency (EPA) Administrator Lisa Jackson is readying to release a formal “endangerment finding” that could regulate carbon dioxide emissions from motor vehicles—as well as from power plants and other stationary sources. These have prompted the U.S. Chamber of Commerce to urge the EPA to hold a public hearing on the evidence—or face litigation.

Jackson told reporters on Monday that the agency’s formal issuance of a finding that could declare carbon dioxide a dangerous pollutant—and trigger regulations on greenhouse gas emissions—will likely "happen in the next months," reported the San Francisco Chronicle.

POWER magazine’s sister publication The Energy Daily (subscription required), meanwhile, uncovered a stronger signal from the agency in a brief footnote to a recent 61-page response issued by the EPA to an environmental group petition. The petition concerned an air permit granted by Kentucky regulators for a new Louisville Gas and Electric Co. coal-fired plant.

The footnote says: “Actions are underway at EPA that could, when finalized, result in the promulgation of final standards controlling the emission of greenhouse gases. In particular, EPA has announced its intention to propose a rule regulating greenhouse gas emissions within the meaning of the Johnson memo,” referring to the Dec. 18, 2008 interpretive memo (PDF) put forward by then-EPA Administrator Stephen Johnson. That memo excluded carbon dioxide from the defined pollutants subject to the federal Prevention of Significant Deterioration (PSD) program under the Clean Air Act.

This April, the EPA proposed (PDF) to regulate carbon dioxide along with five other greenhouse gases as pollutants that jeopardize public health and welfare. If the EPA releases its formal endangerment finding as is anticipated in the next few months, it would obligate the agency to regulate carbon dioxide as a pollutant under the Clean Air Act—even while the Senate drafts and debates climate change legislation. Senators have reportedly delayed unveiling legislation to later this month, rather than on Tuesday as had originally been planned.

In response to similar reports, the U.S. Chamber of Commerce last week filed a supplemental request (PDF) for an “on-the-record” hearing to debate the evidence behind the EPA’s expected finding that greenhouse gases endanger public health and welfare. If the EPA denies the chamber’s petition for climate science debate, the group could take the agency to court.

Reports that issuance of a formal endangerment finding was looming were “presumably to prod the Senate to pass controversial climate legislation,” said the gigantic federation representing 3 million businesses and organizations. But it was clear that the agency had ignored “evidence contradicting its conclusions on a wide range of issues, such as the effect higher temperatures will have on net mortality and levels of other pollutants,” it said.

“The informal notice-and-comment process has not worked here and the only real solution is an on-the-record hearing for a transparent review of the evidence,” said William Kovacs, the U.S. Chamber’s senior vice president for Environment, Technology, and Regulatory Affairs. “We have reviewed all of the evidence in EPA’s endangerment docket and are deeply troubled by the flaws and omissions underlying the proposed endangerment finding. All the Chamber is asking for is transparency in this process. This ruling could ultimately cause a regulatory train wreck with inescapable economic consequences.”

The organization said that it had submitted a request in June for a formal “on the record” rulemaking using the Administrative Procedures Act to settle the issues. However, since then, it said  reports had surfaced that the EPA suppressed a study by two members of its staff, Dr. Alan Carlin and Dr. John Davidson, stating that the agency relied on outdated studies and that the current state of climate science refutes the proposed endangerment finding.

“Today’s supplemental filing by the Chamber takes into account the Carlin-Davidson study and the evidence submitted by the public in response to the proposed endangerment finding,” it said.

Sources: San Francisco Chronicle, The Energy Daily, EPA, U.S. Chamber of Commerce

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