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Abstract

The U.S. Environmental Protection Agency (EPA or the Agency) recently announced its intention to make a finding under the Clean Air Act that greenhouse gases from new cars and light trucks endanger the public health and welfare by contributing to global climate change. That proposed endangerment finding is highly controversial because of the possibility that, once finalized, it will obligate EPA and the states to regulate greenhouse gases from nearly every sector of the economy with “national ambient air quality standards,” the central program of the Clean Air Act that addresses air pollution all across the country. Reviewing the Clean Air Act and its legislative history, this article analyzes EPA’s legal obligation to adopt those broad, national standards for greenhouse gases once the endangerment finding takes effect. While the statutory language might appear to give the Agency discretion not to do so, the article identifies a possible scrivener’s error─not previously discussed by EPA, the courts or others─that would require the Agency to issue those national standards.

Whether a court will accept that new interpretation or, instead, find flexibility for EPA depends ultimately on whether the Agency persuasively demonstrates that national standards are unworkable for greenhouse gases and unnecessary in light of the other steps it is taking under the Clean Air Act. The article analyzes EPA’s claims on both scores, especially in light of the Massachusetts Court’s skepticism on the Agency’s climate change record. Although applying the current statute to greenhouse gases poses challenges, a skeptical court might very well conclude that the national standards can be sufficiently tailored so as to prove useful in our efforts to mitigate global climate change.

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