This afternoon, the U.S. EPA is scheduled to announce that it is making a formal endangerment finding for greenhouse gases under the Clean Air Act. This is the factual finding that triggers GHG regulation under various portions of the Act. No doubt, one reason for the announcement today is the administration’s desire to be seen as taking action on climate change during the Copenhagen summit.
Given the timing of the announcement, it’s pretty clear the EPA was not dissuaded in the least by the ClimateGate revelations. They had their minds made up. Does this matter legally? Probably not, but that depends on how the EPA defends its decision. Judicial review of the EPA’s decision will be quite deferential, as required by the Clean Air Act, so the EPA does not have to “prove” that its assessment is correct. Rather, all it needs to do is show that its decision was reasonable, given the scientific evidence available. So, as a practical matter, if EPA attorneys dotted their i’s and crossed their t’s (hardly a foregone conclusion given the Agency’s track record), the decision will withstand any legal assault, and the imposition of costly GHG regs will proceed apace. As a consequence, the only way to prevent regulation of GHGs under the Clean Air Act is to convince the EPA to change course (not gonna happen) or pass legislation denying the EPA such regulatory authority.