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.

The EPA stresses that it had to act under the Supreme Court ruling. In Massachusetts v. EPA, the court found that the EPA has the authority to regulate greenhouse gases under the Clean Air Act, and that it cannot refuse to use that authority simply because of policy preferences. If the EPA found that greenhouse gases endangered the public health and welfare, the court ruled, then the agency had to act. (Read about former GOP Rep. Tom Delay’s role in instigating the endangerment ruling here.)

The proposed finding signed today covers six greenhouse gases: CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. While the court case involved auto emissions, the ruling can potentially have a wider impact on a range of industries – electricity, transportation, steel, cement, semiconductors, agriculture, livestock, landfills, natural gas, just to name a few.

Jackson said she took into account the disproportionate health impact that climate change has at-risk populations, such as infants and the elderly, and on poor populations and indigenous groups dependent on one or a few resources.

She also weighed the science, including evidence that the changing climate conditions will lead to increased drought and heat waves, more severe storms and flooding, rising sea levels, and harm to the nation’s agriculture, wildlife, ecosystems and water resources.

“It is the Administrator’s judgment that the total body of scientific evidence compellingly supports a positive endangerment finding for both public health and welfare,” the finding reads.

Jackson’s proposed endangerment finding is good first step, but just the first step, says Eli Hopson of the Union of Concerned Scientists:

“The EPA needs to establish strong emission reduction policies that complement the energy and climate legislation we expect Congress to pass this year.”

Sierra Club chief climate counsel David Bookbinder adds that the EPA’s move sends a strong message from the Obama administration to the nation and the rest of the world that the United States is willing to take action:

“There is no longer a question of if or even when the U.S. will act on global warming. We are doing so now. This step will allow the administration to move forward while continuing to work with Congress to pass a strong clean energy jobs and climate plan.”

Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.) won’t be letting Congress forget about that potential as their committees begin hammering out the details of the legislation next week. First up on the list of administration witnesses testifying before committees next week will be EPA Administrator Lisa Jackson.

See also:

How Tom Delay Sparked the EPA’s Greenhouse Gas Endangerment Finding

EPA Review Reverberates Through U.S. Energy Industry

Clean Air Jump-Start

Obama Orders Return to Scientific Integrity in Policymaking

Silicon Valley Was Ready for GHG Rule

Obama Calls on Congress to Set Carbon Cap