On Friday April 17, 2009, after a review ordered in 2007 by the U.S. Supreme Court, EPA issued a proposed finding that “greenhouse gases contribute to air pollution that may endanger public health or welfare.” EPA is seeking comments during a 60-day review period. For a copy of EPA’s proposal, see http://epa.gov/climatechange/endangerment.html. EPA asserts that the finding standing alone does not impose any new requirements, and therefore it will not impose a significant economic impact on small business. I hope that holds true.
However, many analysts believe the finding of endangerment will automatically trigger regulation of greenhouse gases as “regulated pollutants” under the Clean Air Act, and that this could trigger pre-construction permitting for large and small commercial establishments under new source review (NSR) and the related prevention of significant deterioration (PSD) program. Unless EPA can adjust the statutory thresholds, apartment buildings, office buildings, big box stores and other commercial buildings larger than 100,000 square feet could trip over the threshold for PSD review and related permitting restrictions if they are heated on site by clean, efficient natural gas rather than by electricity generated elsewhere by a coal-fired power plant. This makes no sense. Rep. John Dingell (D-MI) famously commented that regulation of greenhouse gas emissions under the existing Clean Air Act would create a “glorious mess.”
This EPA action will significantly increase political pressure on Congress to enact legislation promptly to create a coherent national climate change program. I think that is the better way to go, as long as the legislation relies on energy efficiency programs to obtain carbon reductions from natural gas customers rather than a cap and trade approach. What do you think?