EPA Issues Endangerment Finding

January 1, 2010

The Environmental Protection Agency (EPA) on Monday, December 7, 2009—opening day of the 12-day international climate change talks in Copenhagen—formally declared CO2 and other greenhouse gases (GHGs) threats to public health and welfare. The move responds to the Massachusetts v. EPA U.S. Supreme Court decision in 2007 that found that GHGs fit within the Clean Air Act definition of air pollutants.

The so-called “endangerment finding” does not impose emission reduction requirements, nor does it trigger Prevention of Significant Deterioration (PSD) or Title V permitting. But it allows the EPA to finalize GHG standards proposed on September 15, 2009, for light-duty vehicles and to require large GHG-emitting facilities, beginning next spring, to incorporate the “best available methods” for controlling GHGs when planning to construct or expand.

The EPA had proposed a PSD and Title V GHG Tailoring Rule on September 30, 2009. If enacted, those regulations would require facilities emitting more than 25,000 tons of GHGs a year to obtain permits and demonstrate they were using the “best practices and technologies to minimize GHG emissions.” On December 7, EPA Administrator Lisa Jackson said that no timeline had been considered for the enactment of this rule.

From January 1, 2010, however, large emitters would be required to monitor their GHG emissions and be required in 2011—for the first time—to submit publicly available information to allow the EPA to track GHGs over time, she said.

The EPA’s proposed endangerment finding was first issued in April 2009. The announcement followed a 60-day public comment period and review of more than 380,000 comments, the federal agency said.

GHGs include CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. “Scientists in the United States and around the world have tracked in the last century—and in particular the last three decades—alarming increases in the amount of greenhouse gases in our skies,” Jackson said in a press conference. “That increase is deteriorating the natural balance in our atmosphere and changing our climate.”

In making the finding, “we relied on decades of sound, peer-reviewed, extensively evaluated scientific data. That data came from around the world and from our own U.S. scientists,” she said. The agency says on its website that this included “all of the scientific and technical information in the record,” though it relied primarily on “published, well-vetted climate change assessment literature. That information, including the recent assessment of the U.S. Global Change Research Program, released in June 2009, is summarized in the Technical Support Document.”

The data showed that “as a result of human activities, GHG concentrations in the atmosphere are at record high levels, and data shows that the Earth has been warming over the past 100 years, with the steepest increase in warming in recent decades.” The “evidence of human-induced climate change” went beyond “observed increases in average surface temperatures.”

Contesting the Science

Immediately after the EPA’s announcement, the Competitive Enterprise Group (CEI) a self-described “non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government,” said it would file suit in federal court to overturn the endangerment finding. The suit would be filed on the grounds that “EPA has ignored major scientific issues, including those raised recently in the Climategate fraud scandal,” it said.

“EPA is clinging for dear life to the notion that the global climate models are holding up,” said Sam Kazman, CEI general counsel. “In reality, those models are about to sink under the growing weight of evidence that they are fabrications.”

“Climategate” refers to the scandal that broke in late November 2009, when a file containing more than 1,000 e-mails sent from or to members of the University of East Anglia’s Climatic Research Unit (CRU) in England was allegedly hacked and posted on the Internet. The e-mails reportedly discussed efforts to prevent certain research from being considered by the Intergovernmental Panel on Climate Change and to “hide” declining temperature trends from tree ring data that were contradicted by rising thermometer measurements. Climate change skeptics contend the messages are evidence that scientists have falsified data to exaggerate the threat of global warming.

Hearings regarding the controversy have already taken place in Congress—and several more are planned. On December 2, 2009, the House Select Committee on Energy Independence and Global Warming grilled White House Office of Science and Technology Director John Holdren and Jane Lubchenco, administrator of the National Oceanic and Atmospheric Administration. Both downplayed the significance of the CRU e-mails and documents.

Holdren said that the documents had yet to be fully analyzed but added that “There is, and there will remain after the dust settles in this current controversy, a very strong scientific consensus on the key characteristics of the problem [of climate change].” Lubchenco said that “the e-mails do nothing to undermine the strong scientific consensus and independent scientific analysis of thousands of scientists around the world that tell us the Earth is warming, and the warming is largely a result of human activities.”

EPA Administrator Jackson, meanwhile, testified separately on December 3 to the Senate Committee on Environment and Public Works that the e-mails did not undermine the scientific consensus on anthropogenic climate change, a claim she repeated at the press conference on Monday.

The controversy has also prompted congressmen—most of whom are Republicans—to formally investigate the climate science, indicating a long and contentious haul ahead for the EPA’s endangerment finding.

Most recently, representatives Darrell Issa (R-CA), John Barrasso (R-WY), F. James Sensenbrenner (R-WI), and David Vitter (R-LA) wrote to the EPA administrator asking that the agency withdraw its proposed regulations for controlling GHG under the Clean Air Act until it can demonstrate that the science is sound.

Sen. James Inhofe (R-OK), ranking minority member of the Senate Environment and Public Works Committee, has also asked Committee Chair Barbara Boxer (D-CA) to hold hearings on whether there was a concerted effort to manipulate climate science. Boxer is looking into the controversy.


The endangerment finding on December 7 prompted a flurry of statements.

Some groups were silent: The U.S. Chamber of Commerce, which had earlier threatened to sue the EPA if it did not have a public debate on climate change science, did not issue a statement. Neither did the U.S. Chamber Climate Action Partnership, the group of businesses and environmental organizations responsible for the cap-and-trade blueprint on which the bill that passed in the House this summer was based.

Others were outright unexpected: The Alliance of Automobile Manufacturers—opponents of climate regulation—welcomed the finding. “Automakers recognize the need to reduce CO2 emissions from new autos,” said Charles Territo, spokesperson for the 11-member alliance, adding that it remains committed to the national standards announced by the Obama administration last May.

The American Coalition for Clean Coal Electricity said that the ruling underscored the need for “sensible climate legislation.” The coalition of coal companies and utilities added: “We believe that regulating greenhouse gas emissions under the statutory authority of the Clean Air Act is not the preferred course.” The key was to bring new technologies to the marketplace, it said.

America’s Natural Gas Alliance President and CEO Regina Hopper said, meanwhile, that the gas group supported the “nation’s goal of reducing greenhouse gas emissions in the United States and around the world, and we believe that natural gas can play a critical role in advancing solutions that are favorable to our nation’s economy, energy security, and low-carbon future.”

Sources: EPA, House Select Committee on Energy Independence and Global Warming, Senate Committee on Environment and Public Works, AAM, ACCCE, ANGA.

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