U.S. Chamber of Commerce Comments

EPA has proposed a legal finding, pursuant to Section 202(a) of the Clean Air Act (“CAA” or “Act”), that greenhouse gases (“GHGs”) emitted by new motor vehicles or new motor vehicle engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. EPA’s theory, as it has been set forth in the Proposal, is that U.S. emissions of GHGs from new motor vehicles contribute to global “air pollution,” which then in turn endangers U.S. public health or welfare.

It has been the consistent position of the U.S. Chamber that the CAA was never meant to regulate GHGs, and the convoluted test for endangerment EPA has manufactured in the Proposal only serves to highlight this point. As a matter of law, EPA lacks the authority to regulate worldwide air pollution under CAA Section 202(a), and its “domestic-global-domestic” endangerment test for GHGs is fatally flawed. However, even if this test were legally permissible, EPA has not adequately demonstrated from a legal or scientific perspective the necessary components of an endangerment finding for GHGs.

To compensate for these obvious legal and scientific shortcomings, EPA commits a wide range of “sins of omission,” willfully ignoring relevant, credible scientific information, including information generated by EPA’s own staff. EPA also willfully ignores the near-unavoidable chain of regulatory determinations and rulemakings that will result, as a matter of law, in one of the largest and most burdensome regulatory programs in American history. By relying only on data that supports its conclusion and ignoring anything and everything that calls its scientific and legal findings into question, this EPA has exhibited the exact same biased, politically-charged conduct many of its current employees criticized the Bush EPA for injecting into the regulatory process.

In an obvious attempt to mute criticism of the Proposal’s flaws, EPA has turned the endangerment process into a complicated game of “hide the ball.” It refused to incorporate any comments from last year’s ANPR into the record for the Proposal--and has given no indication whatsoever that its staff actually read the ANPR comments prior to issuing the Proposal--yet refused to extend the comment period on the grounds that the public had a chance to respond to much of the Proposal during the ANPR process that EPA now no longer deems relevant. It has cursorily dismissed documents leaked to the public that show obvious disagreement among the agencies in the Executive Branch over the scientific and legal implications of an endangerment finding. And, by issuing a formal notice that it intends to promulgate a Section 202(a)-based tailpipe GHG emissions rule, it has clearly prejudged the issue of endangerment and has therefore turned the Proposal comment period into a complete charade.

These comments focus on whether the scientific evidence developed and relied upon by EPA adequately “connects the dots” to the extent required by law to satisfy EPA’s purported test for endangerment--that local action contributes to global pollution which then endangers local public health and welfare--and kick off the regulatory cascade the Proposal almost surely will engender. For the reasons stated below, it is the U.S. Chamber’s position that, regardless of the question of whether anthropogenic greenhouse gases have built up in the atmosphere, EPA has not adequately demonstrated from a legal or scientific perspective the necessary components of an endangerment finding. Because that is the fundamental finding that EPA is required by law to make in order to regulate GHGs under Title II of the CAA, EPA must withdraw the Proposal.