The Environmental Protection Agency (“EPA”) recently declared that carbon dioxide and other greenhouse gases are endangering the health of Americans, and that regulation of those gases is necessary to prevent further harm. This finding is significant in several respects.
First, it reflects the Obama administration’s willingness to move forward on the prevention of climate change without the help of Congress if necessary. With less than a week before the upcoming international climate conference in Copenhagen, the EPA’s finding is an assertive statement by the administration that while Congress continues to debate the progress of climate legislation, and has yet to take definitive action, the United States is still prepared to do what is necessary to prevent climate change.
Second, it marks an important step in environmental and administrative law. In a 2007 ruling, the Supreme Court conclusively found that gases such as carbon dioxide are pollutants under the Clean Air Act, but in order to use the Act to regulate the emission of such gases, the EPA must first designate them as harmful to public health. With its recent conclusions, the EPA has done just that, opening the door to future regulatory action if the legislation currently before the Senate does not pass.
The EPA and the White House have said regulations on greenhouse gases will not be imminent, saying instead that the administration would prefer that Congress act to limit pollution. Nevertheless, the EPA has begun developing permit requirements on carbon dioxide pollution from large emitters. The EPA’s readiness to tackle climate change is expected to lend credence to the U.S. arguments at the climate conference opening in Copenhagen this week.