EPA Defends Endangerment Finding, Says Decision Grounded in Clean Air Act, Science

The Environmental Protection Agency's determination that greenhouse gas emissions from vehicles endanger public health and the environment was a science-based decision that closely adhered to the requirements of the Clean Air Act, it said in an Aug. 18 court filing (Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 09-1322, brief filed 8/18/11).

In a brief filed in the U.S. Court of Appeals for the District of Columbia Circuit, EPA said its endangerment finding is “a protective, science-based judgment (not a fact-finding exercise) that is focused solely on potential threats to public health and welfare posed by air pollution,” as required by Section 202(a)(1) of the Clean Air Act. Section 202 of the act regulates emissions standards for motor vehicles

Defending the finding, the agency said lawsuits from states and industry groups challenging the endangerment finding have relied on “unfocused and unjustified attacks on isolated elements of the administrative record” because the conclusion that greenhouse gases pose a threat is scientifically grounded.

“The endangerment finding is based on an extensive, intensely scrutinized and peer-reviewed scientific record,” EPA said. “Much of the basic scientific information underlying the administrator's finding is, moreover, essentially undisputed. That greenhouse gases trap heat; that trapped heat in turn warms the climate; that levels of greenhouse gases in the atmosphere are increasing; that this increase is caused by human activity; and that greenhouse gas levels in the atmosphere are projected to continue rising for the foreseeable future—none of this is seriously disputed.”

EPA said in its December 2009 endangerment finding that emissions of six greenhouse gases from motor vehicles threaten public health and the environment. That finding was the first step toward EPA regulating greenhouse gases under the Clean Air Act (74 Fed. Reg. 66,496; 233 DEN A-1, 12/8/09).

In briefs filed May 20, some states and industry groups challenging the endangerment finding argued that EPA never identified a level at which greenhouse gases pose a threat to public health or the environment, something the agency has done with other air pollutants. They also argued that EPA has not articulated how its regulations would substantively address a problem that is global in nature. The states and industry groups have asked the court to vacate EPA's endangerment finding, which would undo all of its subsequent greenhouse gas regulations for vehicles and stationary emissions sources (100 DEN A-1, 5/24/11).

Level of Harm Not Necessary

EPA said the Clean Air Act requires the endangerment finding to be “focused solely on a precautionary, science-based judgment by the administrator as to whether or not the motor vehicle emissions in question cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare.”

Challengers have argued EPA's endangerment finding should be vacated because it never specified a threshold of harm to the public or how its subsequent regulations will mitigate that threat, something EPA has done for other air pollutants.

The agency said the statute does not require it to determine at what precise level the harm would occur. Instead, EPA is required to “judge both the likelihood that harm will occur and the severity of the harm if it were to occur” when it makes an endangerment finding.

Additionally, EPA said nothing in Section 202(a) of the act suggests the agency must consider how effective the control measures will be when making an endangerment determination. Similarly, the Clean Air Act separates the process for making an endangerment finding and then requiring pollution controls for national ambient air quality standards as well, EPA said. Instead, those factors should be considered when EPA actually issues standards for vehicles, the agency said.

“Thus, not only is there nothing in Section 202(a)(1) itself that suggests EPA should consider the efficacy of emission standards as part of the endangerment finding, but this separation of endangerment and standard-setting criteria is repeated in comparable contexts throughout the act, and certainly is not unusual or inappropriate as petitioners suggest,” EPA said.

Stationary Sources ‘Irrelevant.’

EPA also dismissed challengers’ claims that it should have considered the impact the endangerment finding subsequently would have on stationary sources of emissions. Finding that vehicle emissions presented a danger also triggered regulations for them as well.

EPA said the effect on stationary sources was “reasonably deemed irrelevant” because “stationary source issues are nowhere even mentioned in Section 202(a)(1)” of the Clean Air Act.

EPA also said it was not required by the act to consider whether society would be able to adapt to or mitigate the effects of an altered climate, the costs to industry associated with subsequent greenhouse gas regulations, or whether “pollution-causing activities have benefitted society.” Some states and industry groups had argued EPA had failed to consider those factors prior to making its endangerment finding.

“Petitioners' approach would require EPA to turn a blind eye to air quality degradation and associated health and welfare impacts, so long as the increased pollution could in some sense be justified, tolerated, or adapted to in the name of ‘progress,’ ” EPA said.

EPA Defends Denials

EPA also defended its decision to deny several petitions asking it to reconsider the endangerment finding. EPA said the various studies cited by the petitioners to justify a withdrawing the endangerment finding “did not support the claims made in the petitions for reconsideration and did not offer any support for a revision of the endangerment finding.”

In a separate filing in the lawsuit, Texas and Virginia argued EPA improperly denied their petitions to reconsider the endangerment finding. They allege the agency relied on material never subjected to public review to support its decision to deny the petitions (99 DEN A-7, 5/23/11).

EPA disputed it relied on any new information when it denied those petitions.

“The ‘additional’ material placed in the record by EPA was in many cases submitted or referred to by petitioners, or was otherwise directly relevant to responding to the reconsideration petitions,” EPA said.

By Andrew Childers

EPA's brief in Coalition for Responsible Regulation v. EPA is available at http://op.bna.com/env.nsf/r?Open=smiy-8kvmf6 .