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Re: Regulating "greenhouse" Gases Under the Clean Air Act: Responding to Massachusetts v. EPA
Docket ID: EPA-HQ-OAR-2008-0318

Introduction

The Institute for Liberty (IFL), a non-profit 501C(4) advocacy organization based in Washington, DC, submits these comments in response to the Advance Notice of Proposed Rulemaking (ANPR) on Regulating "greenhouse" Gases Under the Clean Air Act (CAA) issued by the Environmental Protection Agency (EPA) and published in the Federal Register on July 30, 2008. These comments respond specifically to EPA's requests for information in the ANPR regarding its response to Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438; 167 L. Ed. 2d 248 (2007), and whether EPA should attempt to determine whether "greenhouse" gas emissions from any class or classes of new motor vehicles or new motor vehicle engines cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare under CAA Section 202(a)(1). IFL focuses on the impact of regulation on the American economy, especially the impact on small business and entrepreneurship in America.

IFL's comments will demonstrate that EPA can make a reasonable statement as to why it cannot make a finding of endangerment under Section 202(a)(1). A finding of endangerment would trigger a regulatory cascade that would in turn impose an inescapable and unreasonable economic burden on both U.S. citizens and the federal government. The compliance costs for four CAA programs triggered by a finding of endangerment-National Ambient Air Quality Standards (NAAQS), New Source Performance Standards (NSPS), Prevention of Significant Deterioration (PSD) and Title V-would be financially and administratively unreasonable for millions of new regulated entities. Congress would have to quadruple amounts appropriated to EPA for state and local air quality grants just to administer the permit programs for CO2. Construction in the U.S. could stop, millions of "greenhouse" gas-related citizen suits could arise, and strict offset requirements could mean a permanent scaling down of industry in the U.S. Businesses forced to limit their emissions in the U.S. will simply move to other nations which have much less substantial environmental standards than the United States, and will continue to emit. The leakage of these emissions will virtually ensure that domestic "greenhouse" gas concentrations will not improve, since the standards in the developing world are much less stringent than in the U.S. Regulation of "greenhouse" gases under the CAA could therefore result in economic chaos with little, if any, actual benefit to the environment.

If EPA persists in believing that emissions of carbon dioxide impact the global climate, it can still focus attention on this issue while satisfying its obligations under Massachusetts, by choosing not to undertake a finding of endangerment for motor vehicles. Under Massachusetts, EPA may refuse to undertake an endangerment finding if it provides a reasonable explanation as to why it cannot or will not do so. The regulatory cascade described in these comments was not considered by EPA, the Supreme Court or Congress until now. The widespread economic devastation in the private sector, not to mention the unprecedented strain on federal and state agency resources, caused by the CAA's regulatory cascade is more than reasonable enough an explanation for declining to find endangerment. Moreover, many of the efforts EPA would take to address motor vehicle emissions have been superseded by the Energy Independence and Security Act (P.L.110-140), a law enacted after the Court decided Massachusetts.

By choosing not to undertake a finding of endangerment on these grounds, EPA can meet its Massachusetts obligations while also protecting the fragile American economy. Policy decisions relating to climate change should be made by Congress, not by EPA through regulations issued under decades-old, incompatible CAA programs.

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