More on the endangerment finding

As Dan mentioned earlier, EPA today issued its proposed finding that emissions of six greenhouse gases, taken together, endanger public health and welfare, and that emissions of four of these gases from cars contribute to the problem.

The proposal rests on a robust interpretation of EPA’s authority to find endangerment, supported by a detailed and persuasive analysis of the text and legislative history of the Clean Air Act. EPA concludes that in deciding whether air pollution endangers public health or welfare it can aggregate pollutants with related effects, in other words, it is not required to evaluate each GHG separately.  It finds that uncertainty is not a barrier to an endangerment finding: endangerment is a function of both the probability and magnitude of harm, such that the greater the magnitude the less certainty is needed. It concludes that it must consider future as well as current harms, extending out as far as the lifetime of the pollutant’s effects, which for CO2 is “at least the remainder of this century.” It finds that public health effects need not be the direct result of the pollutant at issue, but may be mediated by changes in climate. It rejects the argument that it cannot regulate emissions from motor vehicles unless those emissions alone are shown to be endangering health or welfare. It rejects the claim that the ability to adapt to a changing climate is relevant to the endangerment finding. And it also rejects the argument that the possibility of some beneficial effects in some places must be balanced against the harms in determining endangerment.

Applying this interpretation, EPA finds: (1) that atmospheric GHG concentrations are at unprecedented, and still climbing, levels; (2) that those levels are unambiguously due to human activities; (3) that there is “compelling” evidence that those GHG levels “are the root cause of recently observed climate change;” (4) and that the entire suite of effects of climate change, including changes in temperature, precipitation, sea level rise, sea ice cover, storm frequency and intensity, fire frequency and intensity, taken together, are already affecting both public health and welfare, and that those effects will become more severe as time goes on. EPA explicitly finds endangerment based solely on effects in the United States alone, but also notes that additional global effects support its conclusion.

As EPA sums up its endangerment finding:

The Administrator concludes that, in the circumstances presented here, the case for finding that greenhouse gases in the atmosphere endanger public health and welfare is compelling and, indeed, overwhelming. The scientific evidence described here is the product of decades of research by thousandsof scientists from the U.S. and around the world. The evidence points ineluctably to the conclusion that climate change is upon us as a result of greenhouse gas emissions, that climatic changes are already occurring that harm our health and welfare, and that the effects will only worsen over time in the absence of regulatory action. The effects of climate change on public health include sickness and death. It is hard to imagine any understanding of public health that would exclude these consequences. The effects on welfare embrace every category of effect described in the Clean Air Act’s definition of “welfare” and, more broadly, virtually every facet of the living world around us. And, according to the scientific evidence relied upon in making this finding, the probability of the consequences is shown to range from likely to virtually certain to occur. This is not a close case in which the magnitude of the harm is small and the probability great, or the magnitude large and the probability small. In both magnitude and probability, climate change is an enormous problem. The greenhouse gases that are responsible for it endanger public health and welfare within the meaning of the Clean Air Act.

Since cars and trucks were responsible for nearly a quarter of all GHG emissions in the U.S. and roughly 4% of global emissions in 2006, EPA concludes that they contribute to the public health and welfare problem. If it were evaluating GHGs individually, EPA explains that it would consider emissions of each of the GHGs produced by mobile sources (CO2, methane, nitrous oxide, and hydrofluorocarbons) to contribute to the problem and merit regulation. As EPA articulates it, the key test for whether a pollutant causes or contributes to pollution that endangers public health or welfare is whether that pollutant is a part of the problem that could be reduced. As the agency explains with respect to methane:

Specifically, these emissions are at a level that contributes to the climate change problem and there are valuable reductions available from these levels.

At this point, EPA insists that this finding is relevant only to emissions from mobile sources, and has implications only for regulation of those sources. The agency says that it expects to have draft tailpipe GHG regulations ready to propose “several months from now.” With respect to other parts of the Clean Air Act, such as setting a National Ambient Air Quality Standard or implementing New Source Review, EPA says simplythat it “is continuing to evaluate its response” and will address those issues in later actions.

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Reader Comments

2 Replies to “More on the endangerment finding”

  1. Interestingly, the arguments against finding endangerment largely parallel EPA’s arguments against standing in Massachusetts v. EPA. Essentially, they argue that there may be causation-in-fact, but there’s no proximate cause because of the multiplicity of sources, time delays, complex causal mechanisms, and scale of the problem. Of course, these two contexts have somewhat different legal rules, and both in turn are different from tort law. Still, the finding of causation-in-fact seems bulletproof, and it seems unlikely that a reviewing court will reject EPA’s analysis of proximate cause — particularly when that analysis resonates with the Supreme Court’s approach to the same issue in a different legal context and when the agency’s interpretation of the statute is entitled to deference under the Chevron doctrine.

  2. In the above article I can follow the legal logic that is being used. The problem is that the EPA is using legal argumentation to obtain a solution and disregards physics, statistics and common sense in achieving that goal. Let me explain.

    With regard to physics is the observation – replete with scientific evidence – that the Earth was much warmer a millennium ago and long before the industrial revolution. If the assumption that the Earth was in equilibrium climatologically then the logical conclusion is that an external force – most probably the Sun – caused the warming period. I submit that this same physical phenomenon is at work now. Legislation of this type, therefore, must recognize its limitations and changing the thermal output of the sun is not one of them.

    With regard to statistics is the observation that this legislation on U.S. vehicle emissions is being enacted due to only 4% of culpability. If good legislation is desired then it should address the bigger problems first. The proper interest for the law, therefore, is to identify the significant sources of GHGs and address that through legislation. Legislation against vehicle emissions is probably quite premature.

    With regard to common sense is the observation that this legislation openly admits to being enacted without a direct connection between cause and effect. Specifically, the EPA’s aggregation of several potential causes – without being able to clearly link them to evidence of climate change – is akin to linking one person’s personality factors and chosen religion to their participation in hate crimes. This defies common sense.

    I would hope that those here at Legal Planet are able to put aside a soda-straw perspective of legislation and suggest corrective action to the EPA legislation. We all want to live in a healthy world… but burdensome legislation is both a waste of time and becomes a different type of environmental litter we all must wade through.

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About Holly

Holly Doremus

Holly Doremus is the James H. House and Hiram H. Hurd Professor of Environmental Regulation at UC Berkeley. Doremus brings a strong background in life sciences and a comm…

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