EPA "Endangerment" Finding On CO2 Could Expand Climate Change Tort Suits

In April 2009, the Environmental Protection Agency proposed a finding that elevated atmospheric concentrations of six greenhouse gases (GHG), including carbon dioxide (CO2), constitutes "air pollution" that "may reasonably be anticipated to endanger public health and welfare." Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 18886 (Apr. 24, 2009). EPA's proposal would also find that four of the GHGs that are emitted by motor vehicles cause or contribute to pollution. As EPA states, if it makes such an Endangerment Finding, the agency would be legally obligated under Section 202(a) of the Clean Air Act to regulate GHG emissions from new motor vehicles. The effect of an Endangerment Finding, however, will not be limited to new automobiles. As EPA indicated in its Advance Notice of Proposed Rulemaking (ANPR), the same or very similar Endangerment Finding language in Section 202(a) is set forth in other Clean Air Act provisions governing many other kinds of stationary and mobile sources. See Regulating Greenhouse Gas Emissions under the Clean Air Act, Advance Notice of Proposed Rulemaking, 73 Fed. Reg. 44354 (Jul. 30, 2008). Logically, if EPA finds that GHG emissions from new motor vehicles endanger the public health or welfare, then EPA must make the same finding as to the GHG emissions of numerous other significant sources. EPA will therefore be obligated to regulate those sources as well. Accordingly, EPA is about to embark on a course in which it will determine that most significant sources of GHG emissions throughout the economy pose a danger to public health and welfare, and must therefore be regulated. An EPA Endangerment Finding could potentially encourage a flood of lawsuits against companies that emit greenhouse gases by claiming that such activities constitute "negligence" or a "nuisance."...WashingtonLegalFoundation