USA – TEXAS Trends and Developments Contributed by: Gerald J. Pels, Gerald D. Higdon and Elizabeth Corey, Troutman Pepper Locke
the foundation supporting the extension of its GHG regulation to other sources. The Rollback, which has been judicially challenged, is important beyond its immediate impact on tailpipe regulation. First, it provided clear guideposts on how EPA will interpret the CAA when analysing pollutant endangerment considerations and clarified EPA’s position that to establish endangerment there must be a direct causal nexus between the pollutant and its regulated source to the harm that is being addressed by the regulation. This is the “cause or contribute” standard. Second, it demonstrated the key limiting role that the MQD can play in circumscribing broad agency actions. Third, the Rollback demonstrated how Loper Bright can be relied upon to question and rein in agency actions. Fourth, the Rollback refined and distinguished the Supreme Court’s Massachu- setts decision. Fifth, in the Rollback, EPA interprets Congress’s intent that the CAA was intended to authorise the regulation of emissions affecting local- ised or regional areas, not globalised conditions, like climate change. Finally, this framework affects not only the Endangerment Finding, but also necessarily erodes EPA’s authority to regulate GHGs from other nonmobile sources. The endangerment finding Rollback To appreciate the Rollback’s implications, it is impor- tant to understand the Endangerment Finding. In 2009, EPA interpreted Section 202 (a)(1) of the CAA to authorise the regulation of emissions from new motor vehicles and engines to address global climate change. EPA took the position that global concentra- tions of six “well mixed GHGs” in the upper atmos- phere constitute air pollution, and when the emis- sions of GHGs from vehicles and engines became combined with the global concentrations of those six “well mixed” GHGs from all worldwide sources, col- lectively they constituted “the largest anthropogenic driver of climate change”, which “can increase the risk of morbidity and mortality”. In the Rollback, EPA scru- tinised the approach required under Section 202 (a)(1) to regulate a pollutant. EPA concluded, based on the statutory language, that it must find that the specific emissions from motor vehicles or engines must cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare on a
local or regionalised basis. In 2009, in an effort to meet the causation or contribution standard, EPA relied upon emissions data from automobiles in 2005 and extrapolated that GHG emissions from all new autos could collectively amount to about 4.3% of annual global GHG emissions. EPA did advise that typically “contribution” would need to be at a greater scale to authorise regulation, but because climate change was unique, and contributors must “do their part”, even if contributions are smaller than would be expected to address regional or local air emission impacts. Statutory interpretation supporting the Rollback In its Rollback, EPA analysed the specific language of Section 202 (a)(1) and its interpretive history and con- cluded the 2009 Endangerment Finding got it wrong. Citing the language of Section 202 (a)(1), EPA can only establish standards for air pollutants which “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare”. EPA laid out how that provision (and the CAA gener- ally) had for decades been used to address “local and regional air pollution problems”. EPA also concluded that Section 202 (a)(1) is best read by requiring the EPA to establish that emissions from the regulated source materially diminish the harm. In its review of the CAA’s structure, EPA noted that “air pollution” as defined in CAA Section 302 refers to basically any- thing that pollutes – ie, an air pollutant agent that is emitted into ambient air, and air pollution is that which harms local or regional areas. Thus, there was intend- ed to be a direct nexus between the air pollutant at issue and its causation or contribution to the targeted harm. EPA noted that in contrast to the historical inter- pretation of the CAA, GHGs did not “endanger public health or welfare through local or regional exposure”. Moreover, the Endangerment Finding could only link health effects in an attenuated indirect manner – not based on any direct exposure. Finally, the Endanger- ment Finding was not limited to the impacts of GHG emissions from new motor vehicles and engines, but rather climate change attributed to all worldwide emis- sions. Therefore, because global impacts, not local or regional conditions, were implicated, there was no true statutory link to authorise regulation. EPA also noted in the Rollback that GHG emissions from US vehicles and engines only account for a de minimis share of global emissions and that the vehicle stand-
446 CHAMBERS.COM
Powered by FlippingBook