The Other Shoe Drops: EPA Finally Issues Endangerment Finding

by Daniel Farber

December 07, 2009

Today, EPA made its long-expected official finding: climate change is real, and we human beings are the cause.

More than two years after the Supreme Court ordered EPA to address the issue, EPA has now formally ruled that greenhouse gases cause climate change that endangers human health or welfare. EPA also found that motor vehicles contribute significantly to levels of greenhouse gases. These findings trigger regulation under the Clean Air Act for motor vehicles. Similar findings are likely in the near future under a different section of the statute relating to stationary sources such as factories.

This development has been inevitable since the Supreme Court ruled that EPA must make a decision based solely on the scientific evidence. Despite all the recent brouhaha about hacked emails, the scientific evidence on climate change is just as solid as the evidence behind DNA identification, the ill effects of cholesterol, the dangers of smoking cigarettes, and a host of other scientific knowledge that we all take for granted. If there were any tenable scientific evidence going the other way, the Bush Administration would have made its own findings in order to block regulation. They knew they couldn’t do that, so they just stalled as long as possible and ran out the clock.

No doubt there will be efforts to challenge the EPA finding in court. But the scientific evidence is overwhelming. In addition, the Supreme Court itself found enough evidence of harm from climate change to create standing for the state of Massachusetts in the original ruling that lead to today’s action. It would take a very bold lower court judge to even think about ruling the other way.

Nobody thinks that the Clean Air Act is the ideal way to address climate change. It would be much better for the Senate to join the House to pass new legislation. I hope that will happen soon. But let’s face it, the Senate has too often become the place where public policy goes to die. Congressional deadlock creates a vacuum that other actors – the Executive Branch, the courts, and state governments – rush to fill.

In short, at this point, it is no longer a question whether federal law restricts carbon emissions. The only question is which federal law: the Clean Air Act or new legislation aimed specifically at climate change.

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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Environmental Law and Policy at the University of California, Berkeley.

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