In its proposal to eliminate the endangerment finding, the Environmental Protection Agency (EPA) argues that greenhouse gases (GHG) do not fit the definition under section 202(a) of the Clean Air Act governing vehicle emissions, which the agency asserts covers only local or regional pollution rather than global climate-related pollution. During an August 14 Bracewell webinar quoted by EPA Insider, Bracewell attorneys opined on the merits of EPA’s arguments, along with the potential ramifications were they to ultimately be successful in court.
Bracewell’s Britany Pemberton noted that EPA’s section 202(a) interpretation could affect its pending proposal to undo a threshold finding that power plants “significantly contribute” to harmful air pollution, revoking all power plant GHG standards.
“Arguably some of the legal interpretations . . . around section 202 could also apply to section 111, which means they could be used to support a conclusion that EPA doesn’t have the authority to regulate greenhouse gases under that section either,” Pemberton said.
Bracewell’s Jeff Holmstead pointed out that industry groups are in a “tough spot” with EPA’s proposal because it is attempting a high-risk legal maneuver that could subject industry to tough rules if it fails.
“If EPA really does choose sort of an all or nothing approach then there is that risk for industry,” Holmstead said.
