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Dec 2009
09
December 09, 2009

GHG Endangerment Finding

While Congress continues to debate the merits of so-called "carbon cap and trade" legislation, U.S. EPA has now set the stage for broad regulation of greenhouse gases (GHGs) under existing provisions of the federal Clean Air Act. As predicted by our Corporate Sustainability and Climate Group attorneys at Warner Norcross & Judd's Climate and Energy conference on December 7, 2009 (the first day of the international Copenhagen Climate Negotiations), U.S. EPA Administrator Lisa Jackson issued EPA's "Endangerment Finding," determining that greenhouse gas emissions pose a risk to the public health and welfare. EPA's Endangerment Finding is a necessary predicate to it finalizing GHG emission standards for cars and light trucks, now expected to occur in the first quarter of 2010.

The Endangerment Finding and the promulgation of the car and truck GHG standards are the culmination of an administrative and judicial process initiated by a petition filed by environmental interest groups in the late 1990’s. The Bush Administration's refusal to affirmatively act upon the petition led to the 2007 U.S. Supreme Court decision in Massachusetts v. EPA, which held that greenhouse gases fall under the Clean Air Act’s definition of "air pollutant."

EPA's December 7 action sets the stage for EPA to not only regulate GHG emissions from motor vehicles, but to more broadly require control or minimization of GHG emissions across the economy. EPA has publicly advised state permitting authorities that it believes that once motor vehicle emissions are regulated by its proposed rule, states will be required to permit and regulate GHG emissions from potentially thousands of sources which combust fuel. EPA is attempting to limit the number of sources potentially affected through separate rulemaking that would require initial regulation of only sources with the potential to emit more that 25,000 tons per year of GHGs.

If you plan to install or modify equipment during 2010 that combusts any fuel, then EPA's December 7 action could affect you. If you have any questions regarding the EPA's Endangerment Finding or potentially applicable future regulations and permitting requirements, then please do not hesitate to contact Steve Kohl, a partner attorney in our Corporate Sustainability and Climate Group specializing in Greenhouse Gas/Carbon Regulation, at skohl@wnj.com or 248.784.5141.

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