EPA Proposes Endangerment Finding, Increasing Pressure on Congress to Act

EPA Administrator Lisa Jackson today issued her much-anticipated proposed finding that greenhouse gases endanger the public health and welfare, leaving Congress as the only climate action laggard left within the three branches of government.

Jackson called the evidence "compelling and overwhelming" and described climate change as "an enormous problem." She also found that vehicle emissions "cause and contribute" to climate change.

Following a 60-day public comment period, the endangerment finding will set the stage for the executive branch, through the EPA and the Clean Air Act, to start a process to place limits on six greenhouse gases, including CO2.

While it does not trigger immediate regulations, it sends a strong new signal.

The endangerment finding is a "game changer" that will finally shift climate policy toward mandatory reductions in greenhouse gas emissions, says National Wildlife Federation policy director Joe Mendelson.

The Supreme Court gave the green light to regulatory moves more than two years ago in Massachusetts v. EPA, but that ruling was ignored by the Bush administration. Jackson's endangerment finding finally answers the court's order, and paves the way for a deliberative EPA process to regulate emissions unless Congress steps in to do it instead.

The question now is: Which branch of government will be in charge of setting the rules for mandatory reductions – how steep, how fast and in which economic sectors?

Even as the endangerment finding was issued today, the EPA and the Obama administration are saying they would prefer Congress pass comprehensive climate legislation, rather than leaving greenhouse gas reduction in their hands.

Jackson’s ruling just started the clock ticking for Congress to respond. Congress can leave greenhouse gas regulation to the EPA, or it can muster the coal- and industrial-state votes needed to pass a final version of the Waxman-Markey climate bill and take charge.

The first draft of the bill offers a political trade-off. The proposed law would clip much of EPA’s authority to regulate CO2 by directly and specifically amending the Clean Air Act. In exchange, the law would set gradual emissions thresholds from new coal plants and put a slowly descending national cap on emissions. As Markey put it earlier this week:

“Now you have a choice if you're in Congress. Do you want the EPA to make the decision or do you want your congressman and senator to be in the room drafting legislation? We think this is a helpful development. It focuses the minds of industry and congressmen and senators."

The swing votes on Waxman-Markey will be coal- and industrial-state Democrats, now faced with a starker choice:

If they oppose the bill, EPA will get to work with regulations, starting with automobiles but extending through formal processes to coal plants and heavy industry.

If Congress instead succeeds in passing Waxman-Markey, it will pre-empt EPA action and buy time for polluters to adjust to emissions reductions more gradually and predictably. The draft Waxman-Markey bill contains generous loopholes for continuing emissions, provides federal support for carbon capture and sequestration, and imposes emission standards on coal plants that don't begin to bite until 2015.