(637b) Climate Change Under the Clean Air Act

In light of the Supreme Court's decision in Massachusetts v. Environmental Protection Agency that greenhouse gas emissions can be regulated under the Clean Air Act, it appears likely that the United States Environmental Protection Agency ("EPA")will be compelled to conclude that it must regulate these emissions under most sections of that Act. EPA has announced that it will soon issue a rule requiring that major sources report their GHG emissions and has represented that it will issue an Advance Notice of Proposed Rule-Making requesting comment on how to undertake regulation of GHG emissions under the Clean Air Act. The majority of states are already taking action individually or regionally to develop and implement multi-faceted GHG emissions reduction plans and a variety of regulatory and market based programs for GHG emissions control. If EPA develops a set of regulations specific to GHG emissions, the Clean Air Act, without amendment, can provide a flexible platform for coordinating state climate plans and regulatory programs under that state implementation plan mechanism with national programs such as cap and trade and emissions limitations for certain sources of emissions. Litigation may drive this process. The petitioners in Massachusetts v. EPA have filed a petition for a writ of mandamus requesting that the D.C. Court of Appeals require that EPA begin rulemaking. The question of whether GHG emissions must be regulated pollutants has been raised in a number of appeals from permits and other approvals for coal fired power plants.