Delay Is the Only Certainty on Federal Greenhouse Gas Emissions Regulations
Despite the U.S. Supreme Court ruling over a year ago in Massachusetts v. EPA that the EPA had the authority under the Clean Air Act to regulate greenhouse gas emissions, confusion still reigns within the executive branch and no progress is being made. On July 11, the EPA announced it would defer a regulatory decision on whether or not greenhouse gas emissions endanger public health and welfare, a necessary finding before regulation under the Clean Air Act can take place. Instead, the EPA has set a 120-day comment period on the issue.
The EPA's action triggered immediate responses from other executive branch agencies. Most notably, the Office of Management and Budget criticized the EPA's proposal, arguing that the Clean Air Act is "fundamentally ill-suited" for greenhouse gas regulation. Other federal agencies issued similar responses, including the Departments of Agriculture, Transportation and Commerce, and the Small Business Administration. Critics decried OMB's actions as an attempt to delay greenhouse gas regulation without directly forbidding it, which would contradict the Supreme Court ruling.
Effectively, the EPA's action has pushed any action on greenhouse gases under the Clean Air Act onto the next administration. With only 100 days left until the 2008 elections, the comment period will expire weeks before the new administration takes office. Perhaps that administration will be better at taking a comprehensive approach to global warming issues that is consistent with the Supreme Court's ruling.
Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.
