Environmental Protection Agency's "Endangerment" Proposal: A Carrot or a Stick?

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On April 17, 2009, the U.S. Environmental Protection Agency (EPA) issued a proposed rule that, if adopted, would find that the atmospheric concentrations of certain greenhouse gases (GHGs) endanger the public health and welfare within the meaning of section 202(a) of the Clean Air Act (CAA). The EPA also proposed to find that GHG emissions from new motor vehicles are contributing to the mix of GHGs in the atmosphere, and therefore contribute to public health and welfare endangerment. While the proposal – an effort to manage what the EPA refers to as the "enormous problem" of climate change – ultimately could result in regulations affecting a range of sectors of the economy from automobiles to power plants, the proposal itself does not include any draft regulations limiting the emission of GHGs. Such regulations would be developed in a subsequent EPA rulemaking proceeding unless Congress moves ahead with broader legislation addressing climate change. While the EPA's action is itself very significant, its political implications may be of greater import. Indeed, the very threat of proposed EPA regulation of GHGs is essentially a "stick" intended to prod Congress into action on a cap-and-trade regime as an alternative means of confronting climate change.

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