Lawyers Advising Clients to Prepare for Economy-Wide GHG Regulation

Ballard Spahr Andrews & Ingersoll, LLP, which traces its origins to the 19th century, is today one of the largest law firms in the United States, with 550 practicing attorneys working out of 12 offices around the country. Earlier this week, two lawyers in its Climate Change Group, Robert B. McKinstry, Jr and Caleb Holmes, sent a detailed memo to the firm's clients.

Titled: "EPA Regulatory Proposals Represent the First Steps of an Economy-Wide Program for Regulation of Greenhouse Gas Emissions," the memo suggested "Those who are facing regulation would be well-advised to begin preparing."

Below is the memo, reprinted in full with permission of the authors and the firm.

On April 17, 2009, U.S. Environmental Protection Agency Administrator Lisa Jackson signed a proposed finding under section 202(a) of the Clean Air Act that emissions of six greenhouse gases cause or contribute to “pollution” that can “reasonably be anticipated to endanger” both health and welfare. See Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Proposed  Rule, 74 Fed. Reg. 18886 (April 24, 2009). This proposal, taken in response to the U.S. Supreme Court’s April 4, 2007, decision in Massachusetts v. EPA, is the first step in what will likely become an economy-wide effort to regulate and reduce emissions of greenhouse gases under the Clean Air Act.

The endangerment proposal followed on the heels of the April 10 publication in the Federal Register of a proposed rule that will require economy-wide reporting of greenhouse gas emissions by significant sources of those emissions, certain greenhouse gas manufacturers, and the producers of fossil fuels whose combustion results in greenhouse gas emissions. See Mandatory Reporting of Greenhouse Gas Emissions, Proposed Rule, 74 Fed. Reg. 16448 (April 10, 2009).

This reporting proposal represents perhaps the most complex regulatory enactment since the 1980 regulations creating the definition of hazardous waste.