No New Regulations Announced, Reasonable Causes For Challenges Abound: EPA’s Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act

December 07, 2009

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by Robert E. Kozak (Advanced Biofuels USA) EPA’s much ballyhooed finding that CO₂ and five other greenhouse gases (GHG) meet Clean Air Act requirements as health hazards is being treated by the Administration and the media as a significant decision that will soon result in large decreases of US produced GHGs. Don’t count on it. Much more likely are successful law suits blocking its legality. Here are some of the reasons why.

· One, EPA purposely disregards the entire issue of setting any new regulations as a result of the Finding.

· Two, EPA stumbles in its determination of why the six gases were selected, and

· Three, EPA applies uneven science criteria in its arguments for both the health effects of the gases and the reasons for including and excluding certain gases.

1. No Regulations Coming From EPA in the Near Future

In its 284 page final ruling, EPA repeatedly points out that this Endangerment Finding does not include any GHG regulations including CO₂ emissions standards for new motor vehicles under Section 202(a) of the Clean Air Act. EPA is particularly emphatic that this Finding would NOT set off what EPA characterized as a “cascade” (pp. 31, 50) of regulatory responses. EPA disputed that any of the Clean Air Act sections, including stationary source requirements, would be required to be revised to include GHG requirements as a result of this finding. I wonder how the National Resource Defense Council and others will interpret this legal position on GHG regulations?

My Take?

What this says is that EPA (and that means the Obama Administration) is in no hurry to actually promulgate new GHG regulations. So Obama can go to Copenhagen next week and say whatever he wants about how this Finding signals his serious commitment to immediately reducing US GHGs. But, since EPA’s interpretation of this Finding doesn’t commit him to doing anything, he’s off the hook as far as actual promises or commitments go.

2. Green House Gas Determination

EPA makes what seems to be a very significant error in the selection of the six GHG included in the finding. It is important to remember that EPA is using Section 202(a) of the Clean Air Act to justify this Finding. Section 202(a) applies only to motor vehicles sold in the US. However, EPA included two gases, perfluorocarbons and sulfur hexafluoride, that are not emitted by Section 202(a) new motor vehicles. EPA even admits this on page 253 of the Finding.

“EPA acknowledges that the Proposed Findings could have been clearer regarding the proposed definition of air pollutant, and how it was being applied to CAA section 202(a) sources, which emit only four of the six substances that meet the definition of well-mixed greenhouse gases.”

But, after admitting this, EPA justifies the inclusion of the two additional gases with an amazing slight-of-hand statement that disregards the legal requirements of section 202(a) (as well as greatly oversimplifying atmospheric chemistry) and instead posits EPA’s own definition of a pollutant as the overriding legal principle.

However, this does not mean that the definition of the well-mixed greenhouse gases as the air pollutant is unreasonable. By defining well-mixed greenhouse gases as a single air pollutant comprised of six substances with common attributes, the Administrator is giving effect to these shared attributes and how they are relevant to the air pollution to which they contribute. The fact that these six substances share these common, relevant attributes is true regardless of the source category being evaluated for contribution. (pp. 254-255)

My Take?

I would guess that any manufacturer of perfluorocarbons or sulfur hexafluoride, as well as anyone who wonders when a “well-mixed greenhouse gas” became the guiding legal principle will be seeing EPA in court.

3. Use of Uneven Scientific Criteria

While EPA starts out on solid ground when they consider rising sea water levels as a primary health effect of increased GHG emissions, they manage to proceed fairly quickly to thin ice (sorry) when it comes to their scientific analysis. Perhaps their biggest mistake is limiting their scientific analysis to the findings of the International Panel on Climate Change, United States Gobal Change Research Program, and the National Research Council Climate Change reports (p-83). While those are good starting points, these studies should not be considered the best source of information on the details of combustion emissions and atmospheric science that contribute to the overall Climate Change effect. Here are two specific examples I found in a quick review:

Increased Hurricane Intensity: On pages 13-14, EPA states the following:

The conclusion in the assessment literature that there is the potential for hurricanes to become more intense (and even some evidence that Atlantic hurricanes have already become more intense) reinforces the judgment that coastal communities are now endangered by humaninduced climate change, and may face substantially greater risk in the future.

While this may be the “conclusion of the assessment literature,” papers in major peer-reviewed journals including Science, have pointed out both a lack of data to make such conclusions and our current lack of understanding of the effects higher sea surface temperatures have on hurricane formation. Including this statement seems to undercut the validity of EPA’s scientific analysis.

Black Carbon as a Climate Forcing Pollutant: Drew Shindell’s paper in Nature Geosciences (Vol. 1 No. 2 pp-294-300, 22 March 2009) quantifies the relative effects of black carbon, and other GHGs, on recent Arctic warming as significant. Of the 1.48⁰C rise in temperature observed from 1976-2007, 1.09⁰C (73%) is attributed to aerosols of which black carbon is the largest component. Papers by Marc Jacobson and others have also identified similar climate forcing effects. Despite the presence of this peer-reviewed research, EPA makes the following claim and cite themselves as the source:

As stated in the April 2009 Proposed Findings, there remain some significant scientific uncertainties about black carbon’s total climate effect,²⁷ as well as concerns about how to treat the short-lived black carbon emissions alongside the long-lived, well-mixed greenhouse gases in a common framework, (p-137)

It seems EPA chose a policy position on black carbon and then fitted their scientific analysis around it rather than letting actual scientific analysis drive their policy decision.

My Take?

Since EPA states that scientific analysis is the key to this Finding, that analysis had better be close to air-tight to justify issuing it. Even from a quick review, this doesn’t seem to be the case. Again, I think EPA will be seeing legitimate arguements in court over the accuracy of their scientific analysis. READ FINDINGS