Greenhouse Gas Dissonance: The History of EPA's Regulations and the Incongruity of Recent Legal Challenges

Abstract

I. INTRODUCTION II. HISTORY OF GREENHOUSE GAS REGULATIONS-WHO WHO INVOLVED AND HOW? A. EPA Issues Legal Opinion Confirming its Authority over Carbon Dioxide B. Bush Administration EPA Disavows GHG Regulation C. D.C. Circuit Upholds Bush EPA's Decision Not to Regulate GHG Emissions From New Motor Vehicles D. The Supreme Court's First Move: Elucidating Parameters Governing Executive Branch Action on GHGs in Massachusetts v. EPA E. Senate Sub-committee Testimony Addresses Uncertainty in a Post-Massachusetts v. EPA World F. EPA Administrator Determines EPA Must Issue Positive Endangerment Finding but OMB Refuses to Open E-mail Containing Proposed Endangerment Finding G. Bush EPA Issues Advanced Notice of Proposed Rulemaking to Solicit Comments on Regulating GHGs Under the Act H. Change of President, Change of EPA Guard: Obama-Appointed EPA Administrator Lisa Jackson Signals GHG Regulation I. The Supreme Court's Second Move: Reaffirming CPA's Authority to Regulate GHGs under the Act in ALP v. Connecticut III. CPA's GHG REGULATIONS AND THEIR UNDERLYING THEMES A. EPA Move Number One: A Science-Based Assessment of Endangerment B. EPA Move Number Two: Improving Fuel Economy with the Vehicle Rule 1. Efficiency of Compliance for Vehicle Manufacturers 2. Benefits for Consumers 3. Improving Energy Security C. EPA Move Number Three: Exempting Small Sources Through the Tailoring Rule D. EPA Move Number Four: Facilitating State Implementation with the Greenhouse Gas SIP Call IV. CHALLENGES TO CPA's RULES ARE DISPROPORTIONATE AND OFTEN DISCONNECTED FROM THESE RULES' ACTUAL IMPACTS A. The Non-Profit Coalition for Responsible Regulation and the Endangerment Finding B. States and the Vehicle Rule C. Large Emitters and the Tailoring Rule D. Texas and the GHG SIP Call V. CURRENT STATE OF THE LITIGATION CHALLENGING THE GHG REGULATIONS VI. CONCLUSION I. INTRODUCTION This article analyzes the U.S. Environmental Protection Agency's (EPA) greenhouse gas (GHG) regulations and notes the cognitive dissonance between the temperance of the regulations and the intemperance of the challenges to them. Part II discusses the long history of GHG regulation under the Clean Air Act (CAA or Act), starting from 1998 when then-EPA General Counsel Jonathan Cannon issued a legal opinion concerning the possibility of GHG regulation under the Act and spanning to the present day. This turbulent history, driven by shifting administration policies and a seminal decision of the United States Supreme Court, has set the stage for EPA's current actions to regulate GHGs under the Act. Part III elucidates how this protracted history has resulted in EPA's existing GHG regulations being carefully transparent and based on efficiency. This part specifically evaluates four EPA actions that impact GHG emissions from mobile sources and stationary sources, analyzing the Agency's efficiency-based focus in disparate regulatory spheres. These actions include: 1) the Endangerment Finding--a science based determination that GHGs endanger human health or welfare; 2) the Vehicle Emission Standards--fleet-wide measures designed to reduce GHG emissions from cars and light trucks; 3) the Tailoring Rule--an action designed to smooth implementation of the Act's stationary source requirements and initially, to focus only on the largest sources of GHG emission; and 4) the State Implementation Rules--actions designed to allow sources in states currently lacking the authority to issue GHG permits to nonetheless obtain legally-required permits. Part IV analyzes the disproportionate challenges from various parties seeking to overturn EPA's GHG regulations. …