# Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Air

Act:

EPA’s Response to Public

Comments

Volume 11: Miscellaneous Legal, Procedural, and Other
Comments

# Miscellaneous Legal, Procedural, and Other
Comments

U. S. Environmental Protection Agency Office of Atmospheric Programs Climate Change Division Washington, D.C.

### iii FOREWORD

This document provides responses to public comment s on the U.S. Environmental Protection Agency’s (EPA’s) Proposed Endangerment and Cause or Cont ribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, published at 74 FR 18886 (April 24, 2009). EPA received comments on these Proposed Findings via mail, e-mail, and facsimile , and at two public hearings held in Arlington, Virginia, and Seattle, Washington, in May 2009. Copies of all comment letters submitted and transcripts of the public hearings are available at the EPA Do cket Center Public Reading Room, or electronically through http://www.regulations.gov by searching Docket ID EPA-HQ-OAR-2009-0171.

This document accompanies the Administrator’s final Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (Findings) and the Technical Support Document (TSD), which contains the underl ying science and greenhouse gas emissions data.

EPA prepared this document in multiple volumes, with each volume focusing on a different broad category of comments on the Proposed Findings. Th is volume of the document provides responses to public comments regarding miscellaneous legal, procedural, and other matters.

In light of the very large number of comments received and the significant overlap between many comments, this document does not respond to each co mment individually. Rather, EPA summarized and provided a single response to each significant argumen t, assertion, and question contained within the totality of comments. Within each comment summary, EPA provides in parentheses one or more lists of Docket ID numbers for commenters who raised particul ar issues; however, these lists are not meant to be

exhaustive and EPA does not individua lly identify each and every commenter who made a certain point in all instances, particularly in cases where multiple commenters expressed essentia lly identical arguments.

Several commenters provided additional scientific litera ture to support their arguments. EPA’s general approach for taking such literature into consideration is described in Volume 1, Section 1.1, of this Response to Comments document. As with the comments, there was overlap in the literature received.

EPA identified the relevant literature related to the significant comments, and responded to the significant

issues raised in the literature. EPA does not indivi dually identify each and every piece of literature (submitted or incorporated by reference) that made a certain point in all instances.

Throughout this document, we provide a list of re ferences at the end of each volume for additional literature cited by EPA in our responses; however, we do not repeat the full citations of literature cited in

the TSD.

EPA’s responses to comments are generally provided immediately following each comment summary. In some cases, EPA has discussed responses to specifi c comments or groups of similar comments in the Findings. In such cases, EPA references the Findings rather than repeating those responses in this

document.

Comments were assigned to specific volumes of th is Response to Comments document based on an assessment of the principal subject of the commen t; however, some comments inevitably overlap multiple subject areas. For this reason, EPA encourages the public to read the other volumes of this document

relevant to their interests.

### iv 

## TABLE OF CONTENTS

11.0 Miscellaneous Legal, Procedural, and Other Comments

11.1 Public Notice and Comment Period .....................................................................1 11.2 Impacts of the May Presidential Announcement on National Fuel Efficiency Policy.......................................................................................................................3 11.3 Endangerment and Cause or Contribute Proposal Separate From Proposed

Standards................................................................................................................3 11.4 Supreme Court Decision in Massachusetts vs. EPA.......................................... 4
11.5 Economic and Related Considerations................................................................6

11.6 Procedural Issues ................................................................................................13 11.6.1 Timing of Final Findings and Regulations 11.6.2 Petition for Formal Rulemaking Proceeding 11.6.3 Responding to ANPR Comments 11.6.4 Transparency

11.7 Statutes and Executive Orders ...........................................................................16 11.7.1 Regulatory Flexibility Act 11.7.2 E.O. 13175 (Consultation With Tribes) 11.7.3 E.O. 13211 (Energy Supply, Distribution, or Use) 11.8 Roles of the Clean Air Act and Legislation........................................................18 11.9 PSD and Title V Programs...................................................................................19 11.10 Impact of Final Findings on Other CAA Sections With Endangerment Language ...........................................................................................................21 11.11 Suggested Alternatives to Section 202(a) .......................................................23 11.12 Potential Other Legal Impacts of Final Findings.............................................25 11.12.1 National Environmental Policy Act Considerations 11.12.2 Potential for Increased Civil Litigation 11.12.3 Carbon Dioxide Injection and Geologic Sequestration 11.12.4 Preemption of State Efforts

11.13 Other Miscellaneous Comments ......................................................................27

Appendix A. Summary Comments Received Pertaining to Economic Issues....................33

### v Acronyms and Abbreviations 

### ANPR Advanced Notice of Proposed Rulemaking

APA Administrative Procedure Act
BACT Best Availabl e Control Technology

CAA Clean Air Act CAFE Corporate Average Fuel Economy CASAC Clean Air Scientific Advisory Committee CEQ Council on Environmental Quality CEQA California Environmental Quality Act CERCLA Comprehensive Environmental Re sponse, Compensation, and Liability Act

CO 2 

### carbon dioxide DOT Department of Transportation

E.O. Executive Order

EPA U.S. Environment al Protection Agency EIS Environmental Impact Statement

FOIA Freedom of Information Act GHG greenhouse gas HFC hydrofluorocarbon HOV high-occupancy vehicle ICTA International Center for Technology Assessment
NAAQS National Ambient Air Quality Standards NEPA National Environmental Policy Act NHTSA National Highway Traffi c Safety Administration NOx nitrogen oxides

NSPS New Source Performance Standards OMB Office of Management and Budget PM particulate matter RCRA Resource Conservation and Recovery Act RFA Regulatory Flexibility Act SBREFA Small Business Regulatory Enforcement Fairness Act SIP State Implementation Plans

TSCA Toxic Substances Control Act TSD Technical Support Document

### 1 11.0 Miscellaneous Legal, Procedural and Other Comments

11.1 Public Notice and Comment Period

Comment (11-1): Many commenters (e.g., 1928.1, 1960.1, 3012, 3197, 3257, 3258, 3325.1, 3394.1, 3411.1, 3452.1, 3476.1, 3556.1, 3576.1, 3576.2, 3681.1, 3749, 3892.1, 3913, 3914, 3916, 3964, 3989, 4003, 4112, 4508, 4932.1, 9528, 10965) argue that the 60-day comment period w as inadequate. Commenters claim that a 60-day period was insufficient time to fully evaluate th e science and other information that informed the

Administrator’s determination. Some commenter s (3452.1, 3596.1) assert that because the comment period for the Proposed Finding substantially overlapped with the comment period for the Mandatory Greenhouse Gas (GHG) Reporting Rule, as well as Congress’ consideration of climate legislation, their ability to fully participate in the notice and comme nt period was “seriously compromised.” Moreover, they continue, because the U.S. Environmental Prot ection Agency (EPA) had not yet proposed Section 202(a) standards, there was no valid reason to fail to extend the comment period. Many commenters (e.g., 1928.1, 1960.1, 3012, 3197, 3257, 3258, 3556.1, 3576.1, 3576.2, 3749, 3892.1, 3913, 4170, 10965, 11466.1) and other entities had also requested that EPA extend the comment period.

A few commenters (3679.1, 3769.1) assert that the notice provided by this rulemaking was “defective”

because the Federal Register notice announcing the proposal had an error in the e-mail address for the docket. One commenter (3679.1) suggests that this error deprives potential commenters of their Due

Process under the Fifth Amendmen t of the Constitution, citing Armstrong v. Manzo , 380 U.S. 545, 552 (1965).

Finally, for many of the same reasons that comme nters argue a 60-day comment period was inadequate, several commenters (3012, 4170) request that EPA reopen and/or extend the comment period. Other commenters (4932.1, 11466.1) request that the comm ent period be reopened because they allege that there was new information regarding data used by EPA in the Proposed Findings. In particular, one commenter (11466.1) states that the commenter recently became aware that one of the sources of global climate data had allegedly destroyed the raw data for its data set of global surface temperatures. The commenter argues that this alleged destruction of raw da ta violates scientific standards, calls into question EPA’s reliance on that data in these findings, and necessitates a reopening of the proceedings. Some commenters (e.g., 11460) state that EPA should re-open its proceeding so that the public can review the Carlin document that was developed by Alan Car lin in EPA’s National Center for Environmental Economics. Another commenter (4932.1) requests that the comment period be extended and/or reopened due to the release of a federal government document on the impact of climate change in the United States near the end of the comment period, as well as the release of an internal EPA staff document discussing

the science.

Response (11-1): See the Findings, Section I.C., “Public Involveme nt,” for our response to comments regarding the public notice and comment period. See also our responses to comments in this volume and other volumes of the Response to Comments document regarding the Carlin document.

Comment (11-2):

EPA received several comments after the close of the comment period, which provided additional

information for EPA’s consideration and/or re quested that EPA reopen the comment period.

### 2 Response (11-2): To the extent practicable, EPA carefully reviewed and addressed late comments. However, comments that

were received well after the close of the comment period were not considered. For example, one commenter (11536) submitted more than 30 additiona l scientific and other references on November 20, 2009. These extremely late comments, some of which we re submitted five months after the close of the comment period and a few weeks before the Administ rator signed the final Findi ngs, were submitted too late for the Administrator to fully consider them. Like many fields of science, climate change is a very active area of research, where new studies are pub lished on a regular basis. No matter when the Administrator issued her final Findings, studies would be available shortly before and after the decision.

It is reasonable for the Administrator to base her deci sion on the robust scientific record before her at this time. Nevertheless, EPA was able to review and addr ess some of the very late literature in the Response to Comments document and we note that other are very similar to comments or groups of comments (in some cases with supporting literature) that were re ceived on time and to which we have responded.

On December 2, 2009, another commenter (11537) submitted a supplement to an October 5th petition asking EPA to reopen the comment period in light of what they alleged was new information. This

commenter claims that the recent disclosure of h acked e-mail messages and documents from the Climate Research Unit (CRU) of East Anglia University in the United Kingdom undermines the Intergovernmental Panel on Climate Change (IPCC) science and assessment process upon which the Technical Support Document (TSD) and the Findings primarily rely.

From our review, it appears that the scientific issues ra ised in the e-mails were also raised in public comments. In fact, we believe that the public comments submitted on our Proposed Findings are more comprehensive than the discussions of the issues in the e-mails because many commenters expended considerable effort to describe their point of vi ew and concerns to us, and several also provided supporting literature and data. In preparing the Finding, EPA has addressed many of the issues raised in the hacked e-mails, among the hundreds of issues raised by commenters. Our responses are fully documented, transparent and available to the public . The science on which the Administrator has based her determinations regarding the endangerment of both public health and welfare, and the process EPA has undertaken, have been fully open and transparent.

Some groups have also used the hacked e-mails to attack the credibility of the IPCC process and its findings. We received many comments on the process u sed to develop, review and approve or accept IPCC reports; see our responses on these issues in Volume 1 of this Response to Comments document. The disclosure of the private communications of a few individual scientists, among the hundreds of scientists that have participated in the developmen t of the IPCC reports and the thousands that have developed the literature that was as sessed, provides no evid ence that contradicts the key conclusions and basic science underlying climate change. As IPCC Chai rman Rajendra K. Pachauri recently stated:

IPCC relies entirely on peer reviewed literature in carrying out its assessment and follows a process that renders it unlikely that any peer reviewed piece of literature, however contrary to the views of any individual author, would be left out. The entire report writing process of the IPCC is subjected to extensive and repeat ed review by experts as well as governments. Consequently, there is at every stage full opportunity for experts in the field to draw attention to any piece of literature and its basi c findings that would ensure inclusion of a wide range of views. There is, therefore, no possibility of exclusion of any contrarian views, if they have been published in estab lished journals or other publications which are peer reviewed.

We note that many of the concerns about the ema ils appear to be based on a misunderstanding of the importance of certain issues and how concerns rai sed about a specific issue or study relate to the

### 3 fundamental conclusions reached through the assessment of hundreds of scientific studies; in other words a misunderstanding that results in an exaggerati on of the importance of these issues. Our responses on these specific issues are provided in the relevant vol umes of the Response to Comments document. As an example of overstatements regarding the events at CR U, many commenters and others have implied that the CRU dataset on global surface temperatures is “unique” or “the most important” or even “the basis for virtually all peer-reviewed literature .” These statements are incorrect. In fact, as we discuss in detail in Volume 2 of the Response to Comments document, the CRU data set is not unique (in fact, the other two data sets are developed by NASA and NOAA), and it th ere are multiple lines of evidence that support the

conclusions reached in the assessment literature upon which we primarily rely.

See Volume 1, “General Approach to the Scien ce and Other Technical Issues” for our responses to general comments on our use of IPCC, U.S. Globa l Change Research Program (USGCRP)/Climate Change Science Program (CCSP), and National Resear ch Council (NRC) reports as the primary scientific

basis.

11.2 Impact of the May Presidential Announcem ent on National Fuel Efficiency Policy

Comment (11-3): EPA received numerous comments (e.g., 3252.1, 3286.1, 3297.1, 3307.1, 3476.1, 3482.1, 3553. 1, 3579.1, 3705.1, 3764.1) arguing that the President’s announcement of a new “National Fuel Efficiency Policy” on May 19, 2009 (Office of the Press Secretary, 2009) , seriously undermines EPA’s ability to provide objective consideration of and a legally adequate response to comments objecting to the previously proposed endangerment findings. The commenters’ (e.g., 3252.1, 3286.1, 3297.1, 3307.1, 3482.1, 3553.1, 3579.1, 3705.1, 3764.1) conclusion is based on the view that the President’s announced policy requires EPA to promulgate GHG emissions standards under Cl ean Air Act (known as CAA or the Act) Section 202(a), that the President’s and Administrator Jackso n’s announcement indicated that the endangerment rulemaking was but a formality and that a final endangerment finding was a fait accompli. Commenters (e.g., 3252.1, 3286.1, 3297.1, 3307.1, 3482.1, 3553.1, 3579.1, 3705.1, 3764.1) argue that this means the result of this rulemaking has been preordained and the merits of the issues have been prejudged.

Response (11-3): See the Findings, Section I.C., “Public Involveme nt,” for our response to comments regarding the impacts of the President’s announcement of a new “National Fuel Efficiency Policy.”

11.3 Endangerment and Cause or Contribute Prop osal Separate From Proposed Standards

Comment (11-4): EPA received numerous comments (e.g., 3252.1, 3286.1, 3297.1, 3307.1, 3482.1, 3553.1, 3579. 1, 3705.1, 3764.1) arguing that it was improper for the Administrator to sever the endangerment and cause or contribute findings from the attendant Section 202( a) standards. Commenters (e.g., 3307.1, 3347.1, 3482.1, 3528.1, 3577.1, 3747.1) argue that EPA has no authority to issue an endangerment determination under Section 202(a) separate and apart from the ru lemaking to establish emissions standards under Section 202(a). According to these commenters (3577. 1, 3747.1, 3704.2), Section 202(a) provides only one reason to issue an endangerment determination, and that is as the basis for promulgating emissions standards for new motor vehicles; thus, it does not authorize such a stand-alone endangerment finding, and EPA may not create its own procedural rules completely divorced from the statutory text. They continue by stating that while Section 202(a) say s EPA may issue emissions standards conditioned on such a finding, it does not say EPA may first issu e an endangerment determination and then issue

### 4 emissions standards. In addition, they contend, the endangerment proposal and the emissions standards proposal need to be issued together so comment ers can fully understand the implications of the endangerment determination. Failure to do so, they argue, deprives the commenters of the opportunity to assess the regulations that will presumabl y follow from an endangerment finding.

Response (11-4): See the Findings, Section I.C., “Public Involvement,” for our response to comments 

### on the Administrator’s issuance of the endangerment and ca use or contribute findings separate from Section 202(a) standards.

11.4 Supreme Court Decision in Massachusetts vs. EPA

Comment (11-5): Commenters (e.g., 3283.1, 3307.1, 3322.2, 3347.1, 3397, 3482.1, 3528.1, 3577.1) argue that the Supreme Court’s decision does not require th at EPA make a final endangerment finding. Rather, they contend that EPA has discretionary power an d may decline to issue an endangerment finding, not just if the science is too uncertain but also if EPA can provid e “some reasonable explanation” for exercising its discretion. They continue that such a reasonable e xplanation may be based on policy concerns, and that it does not have to be based on the scientific questio n regarding the reality of climate change or the contribution of carbon dioxide (CO 2 ) emissions to climate change. Thus, these commenters disagree that the Supreme Court decision allows EPA to forgo a final endangerment determination only if the scientific uncertainty is so profound that a reasoned scientific determination cannot be made. They interpret the Supreme Court decision not as rejecting all policy versus scientific reasons for declining to undertake an endangerment finding, but rather as dismissing solely the policy reasons EPA set forth in 2003. Commenters argue that EP A is free on remand to offer another reasonabl e, policy-based explanation for deciding not to regulate CO 2 under the existing provisions of the Act; commenters (3424.1) cite SEC v. Chenery Corp ., 332 U.S. 194, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947), for the proposition that that an agency can take action on remand identical to the action reversed by the Court if the agency can provide a different and legally permissible basis for the action.

Commenters (e.g., 3320.1, 33214.2, 3329.1, 3435.1, 4173, 7025) then suggest a variety of policy reasons that EPA can and should make to support a reasonable explanation no t to undertake a finding of endangerment under Section 202(a)(1) of the CA A. For example, they ar gue that a finding of endangerment would trigger several other regulato ry programs—such as Prevention of Significant Deterioration (PSD)—that would impose an unreasonable burden on the economy and government, and would not provide a real benefit to the environment. At least two co mmenters (0321, 289 8.1) state that an endangerment finding would create a constitutional crisis by empowering litigants and courts to usurp Congress’ authority to determine the basic direction of public policy. They continue that the result would be a “Mega-Kyoto system” without th e people’s elected representatives ever casting a

vote.

Still other commenters (2818, 3494.1) argue that th e endangerment determinati on has to be made on the basis of scientific considerations only. Commenters (e .g., 3502.1) state that the Supreme Court was clear that “[t]he statutory question is wh ether sufficient information exists to make an endangerment finding,” and thus, only if “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether GHGs contribute to global warming,” may authorize EPA to avoid making a positive or negative endangerment finding. Commenter s (e.g., 3356.1) contend that an economic-cost rationale (such as that set forth by many other comm enters), like the “polic y conflict” rationale EPA provided in its original denial, is “divorced from the statutory text.” They also disagreed that the policy

### 5 reasons raised by other agencies as part of the Ad vance Notice of Proposed Rulemaking (ANPR) were legitimate legal reasons to delay making an endangerment finding.

Response (11-5): See the Findings, Section I.C., “P ublic Involvement,” for response to comments regarding whether the Administrator can decline to make an endang erment finding due to policy considerations.

Comment (11-6): Many commenters (e.g., 0230, 0231, 0692, 2898.1, 2979) disagree with the Supreme Court’s decision in

Massachusetts v. EPA regarding EPA’s authority to regul ate GHGs under the CAA. One commenter (0692) declares that the decision by the Supreme Court ranks equal to the Dred Scott decision sanctioning slavery. Some commenters (2898.1, 2979) continue to make arguments rejected by the Supreme Court regarding Congressional intent and st atutory language in the CAA (e.g., legislative history, CAA is focused on local/regional polluti on). Others (2898.1) make new arguments to support

their claims that the CAA does not authorize EPA to regulate GHGs to address climate change.

Finally, other commenters argue that the Court simply was wrong to hold that the CAA authorizes EPA to address GHGs and climate change, and that GHGs meet the defi nition of “air pollutant” under Section 302 of the CAA. For example, many commenters (e.g., 3214.2, 3329.1, 3435.1, 4173, 7025) argue that if the Supreme Court had been aware of the regul atory cascade that would flow from a positive endangerment finding and regulation under Section 202(a), they would never have found that the CAA authorizes EPA to undertake such actions. Essentially, commenters (2898.1, 3424.1) argue that petitioners

in Mass. v. EPA misled the Court into believing that regulation under Section 202(a) would pose no risk to the U.S. economy and thus caused the ju stices to reject the argument, based on FDA v Brown & Williamson Tobacco Corp , 529 U.S. 120 (2000), that GHG regulati on was a policy decision of “such economic and political magnitude” that Congress would not delegate it to an administrative agency, especially in “so cryptic a fashion.” These commenters contend that based on more recent information regarding the regulatory cascade that will follo w an endangerment finding—including the ANPR, industry studies, and Congressional testimony—the court’s opinion that regulating GHG emissions

under Section 202 could not lead to “extreme meas ures” or to policy decision s of enormous “economic and political magnitude” is no longer tenable. In another example, some commenters (2898.1, 2979, 3217.1) argue that th e court’s decision wrote the words “polluta nt” and “pollution agent” out of the statutory definition of “air pollutant.”

Response (11-6): The Supreme Court has ruled that GHGs fall within the definition of “air pollutant” under the CAA and that EPA may regulate GHGs if required findings were made. The decision of the Supreme Court of the United States is binding on EPA. It w ould not be appropriate for this ac tion to be based in any way on arguments that have been rejected by the Supreme C ourt. Nor is this rulemaking an appropriate forum for making new arguments in support of commenters’ po sition that if the Supreme Court had better understood the repercussions of its decision it would ha ve reached a different conclusion. More than 20 briefs were filed by the parties and other interested parties in the Massachusetts v. EPA Supreme Court litigation; there was ample opportunity for stakeholders to present their arguments to the Court. The time to challenge EPA’s general aut hority to regulate GHGs under the CAA has passed; EPA is moving forward and following the Supreme Court’s decision.

### 6 11.5 Economic and Related Considerations

Comment (11-7): At least one commenter (3347.1) argues that EPA was required to conduct an economic analysis under

Section 317 of the CAA. The commenter contends th at Section 317 requires the preparation of an economic impact assessment prior to the publication of a notice of proposed rulemaking for most major standard-setting actions under the Act, including “any regulation establishi ng emission standards under [Section 202] of this title and any ot her regulation promulgated under that section.” They continue that since EPA is issuing the findings through the Section 307(d) notice and comment procedures, the requirements of Section 317 apply as well. Comment ers note that the economic impact assessment required under Section 317 requires an analysis of: 1) th e costs of compliance; 2) potential inflationary or recessionary effects; 3) effects on small businesses; 4) effects on consumer costs; and 5) effects on energy use. They argue that if EPA had undertaken its Sect ion 317 duties, it would have exposed the substantial economic costs identified by commenters to the pr oposal and the 2008 ANPR. These commenters believe that EPA proceeded with an endangerment finding sep arate from actual proposed regulations specifically to circumvent its responsibilities under Section 317 and that such po litical maneuvering is unacceptable and must be corrected by the issuance of a full Sec tion 317 economic impact assessment for the proposal and any regulations triggered by an endangerment finding.

Response (11-7): Section 317 of the CAA applies to “any regulation establishing emission standards under [Section 202] and any other regulation promulga ted under that section.” The Final Findings are not a regulation promulgated under Section 202(a) of the CAA, as they do not include any regulatory text, and they do not impose any requirements on any person other than EPA. While it is true that EPA determined that the procedural requirements of Section 307(d) applies to this action, that decision does not render these findings a “regulation” for purposes of Section 317 of the CAA. The emissions standards proposed in the Proposed Vehicle Rule (74 FR 49454) are the appr opriate forum for any economic impact assessment required by Section 317, because that is the rule in which EPA explores the various control strategies and their costs and benefits. Section 317(c) discuses the de tails of the economic analysis, which only makes sense when applied in the concrete context of proposed standards or other control requirements (e.g., cost of compliance), rather than in the context of e ndangerment and cause or contribute findings, which are unrelated to such considerations. EPA is not attemp ting to circumvent Section 317 by issuing the Final Findings separate from the proposed motor vehicle em issions standards; indeed, the Proposed Vehicle Rule contains an economic assessment, a nd commenters are welcome to address it.

The commenter essentially is trying to inject standard -setting cost considerations into the endangerment finding, of not only any Se ction 202(a) emissions standards but al so of regulating GHGs more generally under the CAA. As discussed in the Final Findings, an d in our response (11-8) and other responses in this volume, the appropriate forum for considering the co st of regulation is the emissions standard-setting phase; not the endangerment analysis.

Comment (11-8): Numerous commenters (e.g., 2898.1, 3704.2, 3747.1, 3764.1) argue that EPA must fully consider the benefits of regulation side by side with the negativ e secondary effects and benefits of inaction, describing this balancing as “risk-risk analys is,” “health-health analysis,” and most predominantly “risk tradeoff analysis.” These commenters express surprise at EPA’s alleged failure to do so, and contend that, as a result, the proposal is invalid under the law. They argue that EPA’s final enda ngerment finding would be arbitrary unless EPA undertakes this type of risk trade-off analysis (citing Competitive Enterprise Inst. v

NHTSA , 956 F.2d 321, 326-28 (D.C. Cr. 1992) (remanding CAFE standards because the agency failed to

### 7 address safety effects of higher fuel economy standard); Corrosion Proof Fittings v. EPA , 947 F.2d 1201 (5 th Cir. 1991) (holding EPA failed to consider toxicity of likely asbestos substitutes); Portland Cement

Co. v. Ruckelshaus , 486 F.2d 375, 385 (D.C. Cir. 1973) (relevant CAA criteria required EPA to take into account counter-productive environmental effects of a proposed standard including economic costs to industry); NRDC v. EPA , 655 F.2d 318, 342 (D.C. Cir. 1981) (EPA balanced looser nitrogen oxides (NO

x ) standards for vehicles against compliance with tighter particulate matter [PM] standards). Commenters (e.g., 3347.1) also argue that the refere nce to “public” health or welfare in Section 202 especially requires EPA to consider the full range of possible impacts of regulation (or not). Indeed, commenters (e.g., 3397, 3564.1 4040.1,) argue, ne gative economic impacts associated with an unnecessarily broad endangerment finding and the unilateral imposition of aggressive GHG controls are

the kinds of welfare effects that EPA should consider in its overall endangerment finding to begin with.

More specifically, many commenters (e.g., 2898.1, 3319.1, 3704.2) argue that when evaluating the

adverse and beneficial effects of GHGs, EPA must look at the full impact of regulating GHGs under numerous provisions of the CAA and determine if the result would be worse for public health and welfare than not regulating. They contend that while EPA looks at the possible negative consequences of not making a positive endangerment determination, it ig nores the unavoidable adverse consequences of actually making a positive determination. Comment ers (e.g., 3411.1, 3702.2,) argue EPA must be transparent about what is actually at stake in maki ng this determination and conduct a full and complete review and analysis of both the positive and the adverse impacts of both positive and negative determinations under CAA Section 202(a). Commenters (e.g., 3704.2) also specifically argue that EPA must consider the economic impact of regulation wh en assessing whether there is endangerment to public welfare (citing International Union v. OSHA , 938 F.2d 1310, 1326–27 (D.C. Cir. 1991) (Williams, J., concurring) (“higher income can secure better health, and there is no basis for a casual assumption that more stringent regulation will always save lives . . . regul ation reduces incomes and thus may exact a cost in human lives”). At least one commenter (3261.1) argues that EPA has violated Executive Order (E.O.) 12866, the Regulatory Flexibility Act, and the Un funded Mandates Reform Act by not conducting an economic analysis or otherwise fully assessing the risks that will inevitably flow from a positive endangerment finding.

Some commenters (e.g., 3217.1, 3595.1, 3628.1, 3747.1) argue that the impact of regulating under Section 202 supports making a final, negative endang erment finding. Some commenters (3217.1, 3479.2)

contend that the incredible costs as sociated with using the inflexible regulatory structure of the CAA will harm public health and welfare, and therefore EPA should exercise its discretion and find that GHGs do not endanger public health and welfare because once EPA makes an endangerment finding under Section 202, the Agency will be forced to regulate GHGs under a number of other sections of the Act, resulting in regulatory chaos.

Many commenters (e.g., 3214.1, 3327.1, 3433.1, 3530. 1, 3567.1, 3608.1, 3704.2, 4099) provide various predictions regarding how regul ating GHGs under the CAA more broadly will impact the public, industry, states, and the overall economy, and thus, th ey conclude, public health and welfare. Examples of commenters’ predictions include potential adverse im pacts on 1) the housing industry and the availability of affordable housing, 2) jobs and income due to industry moving overseas, 3) the use of hydrofluorocarbons (HFCs) in truck foam insulation, 4) the methods used to find, extract, and refine hydrocarbons, 5) the agriculture industry and its abilit y to provide affordable food, and 6) the nation’s energy supply. At least one state (Texas) provided a detailed estimate of the impact of regulating GHGs under the CAA on the state economy. In support of its arguments, some commenters cite the Office of Management and Budget (OMB) lette r provided with the ANPR, as well as interagency comments on the draft Proposed Findings, with regard to the potentia l for serious economic consequences for regulated entities throughout the U.S. economy if EPA regulates CO 2 under the CAA for the first time. See

### 8 Appendix A of this volume for a more detaile d summary of comments pertaining to economic implications of regulation under the CAA.

Response (11-8): Please see Section III.F of the Final Findings for a gene ral response to this comment. In addition, we note that the cases cited above by commenters in support of their argument—that EPA must consider the impacts of GHG regulations under the CAA when making an endangerment determination for GHGs under Section 202(a) of the CAA—involve the setting of standards or regulations, and not the initial question of whether a statutory precondition to settin g standards has been met, such as determining whether the air pollution (not the ensuing regulations) endanger public health or welfare. None of the cases stand for the proposition that it would be arbitr ary for the Administrator to focus her endangerment analysis on the science of GHGs and climate change , and nor on the potential economic ramification of regulations that may follow a positive endangerment finding. As discussed in the Final Findings and elsewhere, the statutory question of whether air pollu tion may reasonably be anticipated to endangerment public health or welfare is different than the ques tion of how to address that air pollution if there is endangerment. The latter step, in the standard-setting phase, is the appropriate forum for considering and weighing the types of factors raised by commenters.

Moreover, as a general matter, the st atutory language applicable to th e various standards discussed in the cited cases require the relevant agency to consider co sts or other factors when setting the standards; thus, it is not surprising either that the agency did so or th at the court held that it must do so. For example, in Corrosion Proof Fittings v. EPA , 947 F.2d 1201 (5 th Cir. 1991), the Toxic Substance Control Act (TSCA) specifically required that EPA choose the least burdens ome regulation that achieves an acceptable level of

risk. Id. at 1215. It also required that EPA consider, along with the effects of toxic substances on human health and the environment, the benefits of such substance[s] or mixture[s] for various uses and the availability of substitutes for such uses,” as well as “the reasonably ascertainable economic consequences of the rule, after consideration of the effect on the national economy, small business, technological innovation, the environment, and public health.” Id. at 1216 (citing 15 U.S.C. § 2605(c)(1)(C-D)). Thus, it is not surprising that the court reviewed whethe r EPA had followed these statutory requirements when establishing “the harshest remedy given to it u nder TSCA.” 947 F.2d at 1216. Similarly, in Portland

Cement Co. v. Ruckelshaus , 486 F.2d 375, 385 (D.C. Cir. 1973), the court was reviewing a New Source Performance Standard under Section 111 of the CAA, which specifically requires that EPA consider cost when setting such standards. The other cases cited also contain specific statutory language authorizing and/or requiring weighing of various factors when setting standards (or waiving control requirements). See Competitive Enterprise Inst. v NHTSA , 956 F.2d 321, 326-28 (D.C. Cr. 1992) (The National Highway Traffic Safety Administration [NHTSA] has always taken safety into account when setting Corporate Average Fuel Economy (CAFE) standards, but failed to do so adequately when setting this standard); NRDC v. EPA , 655 F.2d 318, 342 (D.C. Cir. 1981) (then CAA Section 202(b)(6)(B) specifically authorized EPA to waive NO

x requirements for certain vehicles under certain circumstances and EPA properly recognized a trade-off at that time between reducing NO

x and particulate matter [PM] from these sources). These cases do not support the argum ent that when determining whether the air pollution endangers under Section 202(a) of the CAA, th e Administrator must consider the full range of possible impacts of future regulation.

Comment (11-9): One commenter (3261.1) argues that EPA fails to discuss the public health or welfare benefits of the processes that produce the emissions. The commenter contends th at for purposes of Section 202(a), this process would be the combustion of gasoline or other transportation fuel in new motor vehicles, and that for purposes of other CAA pr ovisions with similar endangerme nt finding triggers, the processes would be the combustion of fossil fuel for electric generation, manufacturing, industrial production, or

### 9 a myriad of other activities, or it could be non-co mbustion activity such as the emission of methane by coal mines, agriculture, or municipal solid waste f acilities; the production of nitrous oxides in various agricultural operations; the use of chlorofluorocarbons for refrigeration; and many others. The

commenter continues that EPA’s decision to limit its analysis to the perceive d detrimental aspects of emissions after they enter the atmosphere—as opposed to the possible positive aspects of emissions because of the processes that create the emissions—is based on EPA’s ove rly narrow inte rpretation of both the meaning of the term “emissions” in Section 202(a) (and therefore in other endangerment finding provisions) and the intent of these provisions. The commente r notes that EPA fails to provide an analysis of the term “emissions” in Section 202( a), and the commenter states that logically, it makes

little sense to limit the definition of the term “emissi ons” to only the “air pollutants” that are emitted. Obviously, the commenter continues, GHGs are emitted for a reason; th ey are the inevitable byproduct

of the combustion of fossil fuels for energy or the end result of some other process. Thus, the commenter concludes, when EPA assesses whether the emission of GHGs endangers public health and welfare, EPA must assess the dangers and benefits on both sides of the po int where the emissions occur: in the atmosphere where the emissions lodg e and, on the other side of the emitting stack or structure, in the processes that create the emissions—otherwise, EPA will not be able to accurately assess whether the fact that society emits GHGs is a benefit or a detrimen t. This approach, the commenter argues, comports with th e preventative nature of the endangerment language: it recognizes the policy decisions inherent in administering the endangerment lang uage. The commenter states that because GHG emissions, particularly CO 2 emissions, are so closely tied wi th all facets of modern life, a finding that GHG emissions endanger public health and welfare is akin to saying that modern life endangers public health or welfare; bu t that simply cannot be true beca use the lack of in dustrial activity that causes GHG emissions would pose other, almo st certainly more serious, health and welfare

consequences.

The commenter goes on to argue that GHG emissions are associated with signif icant, positive health and welfare effects that must be evaluated as part of the endangerment finding. For example, the

commenter contends that EPA’s view misses the obvious fact that public health and welfare has been improving notwithstanding the state of the climate, which is always changing (attaching a report that places this issue in historical context and shows the dramatic health and welfare benefits created by fossil fueled-energy usage, particularly as a result of the large-scale introduc tion of electricity).

Response (11-9): See the Findings, Section III.F, for our responses to comments that EPA should discuss the public health or welfare benefits of the pr ocesses that produce the emissions.

Comment (11-10): Similar to comments above arguing the Administrator must consider the economic impacts of regulation in her endangerment analysis, many commenters (e.g., 3217.1, 3347.1, 3411.1, 3509.1, 3699.1, 3747.1) express an overall criticism that the Proposed Findings and/or the TSD lack an economic cost-benefit analysis or have an incomplete analysis of costs and benefits. Several commenters (e.g., 3509.1, 3553.1, 3232.1, 3699.1, 3704.2) cite the OMB letter provide d with the ANPR, as well as interagency comments on the draft Proposed Findings, stating that EPA’s proposal could “be strengthened by including additional information on benefits, costs and risk s.” The comments suggest that these comments should be addressed and reflect on the validity of the Agen cy’s endangerment finding. Many commenters (e.g., 0400, 0564, 0650, 2895, 3324.1, 3394.1, 3764.1, 4173, 4288, 9913, 10923,) request that EPA undertake a careful cost-benefit analysis before moving forward with any regulation of GHG emissions.

Commenters appear to believe that the economic cost -benefit analysis should broadly analyze regulating GHGs under the CAA as a whole (e.g., assuming different National Ambient Air Quality Standards

### 10 [NAAQS] scenarios, availa bility of biomass as a fuel), or for all potential mitigation scenarios (e.g., assuming new legislation). Some commenters (e.g., 3452. 1, 3507.2, 3560.1, 3595.1) suggest a variety of

factors that EPA should consider in an economic cost-benefit analysis, such as impacts on jobs, home prices, and the impacts on safety of imports as they increase. Others (e.g., 063 0, 2980.1, 3360, 3436.1) express concern with how EPA would undertake any co st-benefit analysis, including claiming that any cost-benefit analysis conducted by EPA will be biased due to EPA’s “alarmist” tendencies when interpreting climate modeling results, or warning ag ainst discounting the future in any present value calculations EPA undertakes, or criticizing the FUND (Climate Framework for Uncertainty, Negotiation, and Distribution) model in favor of the DICE m odel (Dynamic Integrated Model of Climate and Economics).

Commenters (e.g., 0801.1, 3679.1) raise many points in support of their argument that EPA should undertake a broad economic cost-benefit analysis for this action, including that the Proposed Findings do not comply with Executive Order 12866 because the comme nter estimates that the cost far exceeds the threshold of $100 million per year and that the Proposed Findings are not consistent with other rulemakings where EPA makes an endangerment findi ng and issues regulations concurrently. On the other hand, some commenters (e.g., 5844) support EP A’s precautionary approach in the endangerment and cause or contribute findings over an approach re liant solely on cost-benefit analysis because a costbenefit analysis: 1) does not adequately address the cumulative impacts of GHG emissions, 2) is premised on an outdated way of thinking that was conceive d during the industrial revolution and has tolerated continually increasing increments of environmental da mage in the pursuit of economic growth, and 3) has failed to protect the public’s health and welfare fro m the cumulative impacts of our society’s seemingly blind deference to economic growth.

Finally, many commenters (e.g., 4173, 3218.1, 3352.1) express doubt that th e benefits of taking action to combat climate change will outweigh the costs; others expressly conclude that any regulation will be a net cost to society rather than a net benefit. Th ey argue that the findings will cause many adverse consequences, including 1) putting the United States at a competitive disadvantage and threatening the nation’s ability to maintain world economic dominan ce; 2) causing stagnation of economic growth; 3) increasing costs for energy, food, transportation, clothi ng, and other necessities; and 4) disproportionately burdening low- and middle-income families. See Appe ndix A of this volume for a more detailed summary of comments pertaining to economic impli cations of regulation under the CAA.

Response (11-10): As discussed in the Final Findings and in our respon se (11-7) and other responses in this volume, this action is not the appropriate place to consider th e economic impacts of mitigation measures that may follow a positive endangerment finding. EPA generally pr ovides an analysis of costs, economic impacts, and benefits in conjunction with proposed regulat ory standards under the CAA. EPA has developed such an analysis to accompany the proposed light-dut y vehicle standards under Section 202(a). While Executive Order 12866 applies to this action, it does so because it raises novel policy issues. It is the proposed vehicle emissions standards and any other regul atory actions that are to be evaluated regarding costs exceeding the $100 million threshold, not these findings.

With respect to the commenters’ statement that co mments submitted during interagency review of the Proposed Findings required further response, we disa gree. In this case, all interagency comments were considered by EPA prior to the Administrator issu ing the Proposed Findings. Any implication that these comments were not considered and addressed by EPA as it considered appropriate in advance of the release of the Proposed Findings is incorrect.

Consistent with the requirements of CAA Section 307(d), EPA places all written interagency comments in the docket. In this case, questions were raised as to whether these comments indicated ongoing concern

### 11 of other agencies regarding the Administrator’s Prop osed Findings. In response to this confusion, the director of OMB issued a statement stating that “O MB would have not conclu ded [preliminary] review [of the proposal], which allows the finding to move forward, if we had con cerns about whether EPA’s finding was consistent with either the law or th e underlying science” (Orszag, 2009). As the director’s statement explains, the document “simply collated and collected disparate comments from various agencies during the inter-agency review process of the proposed finding” that “do not necessarily represent the views of either OMB or the Administration.”

We also note that an economic cost-benefit calculation necessitates analysis of a given level of action. No such analysis can be made for the endangerment a nd cause or contribute findings because they do not set a level of action (e.g., emissions re ductions targets). Quantitative analysis of monetized costs and benefits would not be possible without either first selecti ng specific standards to assess or making significant assumptions about a given level of action.

Because EPA did not undertake an economic cost-benef it analysis with these Final Findings, we are not responding to comments addressing the specifics of such an analysis (e.g., commenting on models or assumptions).

Finally, as in other comments, the issues before EPA concern the contribution of emissions from new motor vehicles and the impacts of the air pollution on th e public health or welfare. A cost benefit analysis of a subsequent standard-setting or other mitigation measure is not relevant to deciding the statutory question before EPA concerning contribution and endangerment.

Comment (11-11): Numerous commenters (e.g., 0248, 2158, 3218.1, 3224, 3372.1, 3373, 3440. 1, 3509.1, 4099, 4107, 6810, 11230, 11050) state that imposing regulation of GHGs in this country will only impede industry and the economy, while other countries, such as China, will c ontinue on with little to no control. Stated another way, they argue that even if the United States we re to eliminate all of its GHG emissions today, CO 2 levels in the United States would not decrease, and CO 2 concentration in the atmosphere would continue to increase. They conclude that GHG regulation will be ineffective in combating a global problem or have such minimal effect as to be indistinguishable from taking no action (e.g., a commenter [11165] cites an EPA finding that a 60-percent reduction in CO 2 emissions by 2050 will only reduce global temperature by 0.1° to 0.2°C by 2095). Some commenters (3324.1, 3 704.2) quote the comments of the former Secretaries of Commerce, Transportation, Energy, and Agriculture included as part of the original ANPR in June, 2008, to express their concern that: 1) emissions of GHGs by developing countries already exceed those of the developed world; 2) developing countries’ emi ssions are forecast to grow exponentially faster than U.S. emissions; and 3) GHG emissions reductions in the United States will produce a global benefit only if emission reductions in one part of the world are not replaced by emission increases elsewhere. Several commenters (e.g., 3324.1, 10115, 11042) argue that a final endangerment finding would force states to engage in a massive and costly regulatory effort that will only succeed in forcing American businesses, the jobs they provide, and their emissions overseas. Commenters note that without an international accord, emissions will simply move from the United St ates, and there will be no environmental gain from EPA’s regulations.

Response (11-11): See the Findings, Section III.F, and in our response (11-7) and other responses in this volume for our responses to comments that EPA should consider the ec onomic impacts of potential future regulation. The question of whether air pollution may reasonably be an ticipated to endanger public health or welfare is different than the question of the environmental or economic impact of proposed measures to address that air pollution if there is endangerment.

### 12 The issues before EPA concern the contribution of em issions from new motor vehicles and the impacts of the air pollution on the public health or welfare. An analysis of the global environmental benefit achieved by any subsequent standard-setting or other mitigatio n measure is not relevant to deciding the statutory question before EPA concerning contribution and endangerment. The standard-setting phase when regulations are proposed is the appropriate forum fo r considering and weighing the types of factors and economic impacts raised by commenter s, such as the potential for impacting job loss and/or job gains.

We note that when conducting economic analyses fo r standard setting (called a Regulatory Impact Analysis), we follow the principles and guidance set out in Executive Order 12866 (September 30, 1993). Typically, these analyses focus on the costs and bene fits of the proposed and final regulations (and alternatives) to society overall and to affected entiti es (e.g., assessing financial and revenue impacts at the firm-level). These analyses typically do not include estimates of employment impacts.

Comment (11-12): Several commenters (e.g., 0308.1, 2818, 2895, 2895.1, 3396, 4036.5, 4746, 6809) voice their s upport for the endangerment and cause or cont ribute findings as the first step towards reducing GHGs. They ask EPA to consider the economic consequences of “business-as-usual” (i.e., continued carbon emissions). Many commenters (e.g., 0168, 0405, 1633, 3035, 3971, 4827, 5205, 6809, 9297, 9644, 10640, 10113) state that “the

cost of inaction far outwei ghs the costs of action.”

The commenters argue that addressing climate change presents economic opportunities, not just challenges, as the country transitions to a clean en ergy economy. One commenter (4036.5) cites a number of examples of where innovation and new technologies have cut pollution regulated under the CAA at far lower costs than predicted while creating new jobs in the manufacturing and supporting industries. Numerous commenters (1318.1, 1520, 4660, 4895, 10408, 10412, 10486, 10587, 10589, 10590, 10608, 10612, 10674) state that GHG emission regulations would lead to improvements in the U.S economy due to new green industries, thereby creating jobs and increasing economic prosperity. They note that time and again, the cost of reducing pollution has proved to be much lower than some in industry projected, and that that businesses can and must find cost-effective ways to implement government regulations. These commenters urge EPA to move forward.

Several commenters (0180, 0293, 0489, 2147, 2402, 3142, 3494.1, 3618, 3759, 4747) encourage EPA to avoid being “swayed” by corporate or political intere sts in the development of regulations, requesting the “most stringent” or “toughest” re gulations possible. Many commente rs (e.g., 2419, 2642, 2634, 2915, 3151, 10012, 10014, 10090, 10170) express concern that vested ec onomic and political interests are attempting to weaken any new laws from EPA on this issue and encourage EPA to proceed. See Appendix A of this volume for a more detailed summary of comments pert aining to the various economic implications of regulation under the CAA.

Response (11-12): As discussed in the Final Findings and in our respon se (11-7) and other responses in this volume, this action does not include an analysis of economic cost s, benefits, or impacts related to any mitigation efforts that may follow these Final Findings.

### 13 11.6 Procedural Issues

11.6.1 Timing of Final Findings and Regulations

Comment (11-13): Several commenters (e.g., 3449.1, 3555.1, 3605.1, 3764.1) note that the Supreme Court did not establish a

deadline for EPA to act on remand. Some comment ers cite language in the Supreme Court decision regarding EPA’s discretion regarding “the manner, timi ng, content, and coordination of its regulations,” 549 U.S. at 533, and the Court’s declining to rule on “ whether policy concerns can inform EPA ’ s actions in the event that it makes “ a CAA Section 202(a) finding to support their position.

Commenters (e.g., 3605.1, 3704.2) note that EPA h as already successfully defended against an action requesting a writ of mandamus, and that last year the D. C. Circuit and a federal district court in California both agreed that EPA had not unreasonably delayed responding to the Supreme Court’s remand. Several commenters set forth the test courts apply for dete rmining whether an agency has unreasonably delayed acting. Commenters (3327.1, 3379.1, 3569.1) urge EPA to take more time before issuing a final endangerment finding. Some commenters (e.g., 3327.1, 3435.1, 7025) note that EPA should defer issuing a final endangerment finding while Congress considers legislation. Some express concern that future legislation may conflict with the proposed actions or because EPA action may remove the impetus for Congressional action. Others (3631, 681 0, 3320.1, 4037.1) simply belie ve that Congress is better suited than EPA to tackle the myriad of tough d ecisions involved in addressing climate change.

Many commenters (3252.1, 3704.2, 7025) note the on going international discussions regarding climate change and indicate they believe unilateral EPA action would interfer e with those negotiations. Others (3322.2) suggest deferring the EPA portion of the joint Department of Transportation (DOT)/EPA rulemaking because they argue that the new CAFE standards will effectively result in lower GHG emissions from new motor vehicles, while avoiding the inevitable problems and concerns of regulating

GHG emissions under the CAA. These and other comme nters noted that EPA’s regulation of GHGs from mobile sources may conflict or overlap with re gulations by other federa l agencies (e.g., NHTSA, Federal Aviation Administration).

Many commenters (3597, 3605.1, 3704.2, 4457.1) urge EPA to take additional time to consider the impact of the finding and attendant motor vehicle ru les under the CAA. They ar gue that the issuance of an endangerment finding will reverberate thro ughout the CAA, and that blindly issuing an endangerment finding would trigger onerous and poor ly understood regulatory obligations, overwhelm EPA and state environmental agencies, and fundamentally alter the nation ’ s manufacturing sector and economy. Commenters contend that until EPA has the ability to th oroughly analyze the potential impact of CAA regulation, it cannot make an inform ed decision. At least one commenter suggested that EPA delay regulating CO 2 under the CAA until the Agency had more experience regulating other

GHGs.

Still other commenters (3322.2, 3397, 3631) suggest that if EPA were to make a final positive endangerment finding, it should delay issuing the Section 202(a) emissions standards. Commenters (3322.2, 3397) argue that EPA can fill the gap left by Congress rega rding the timing of such standards (citing Chevron U.S.A. v. NRDC , 467 U.S. 837, 843 (1984) and Morton v. Ruiz , 415 U.S. 199, 231 (1974), in support of their argument that administ rative agencies may formulat e policy for the purpose of “gap-filling” to effectuate Congressional inte nt). Commenters (3322.2, 3605.1) note that in Mass v.

EPA , the Court recognized EPA’s “significant latitu de” regarding the timing, content, and other considerations related to its regulations. These co mmenters (3322.2) also argu e that the D.C. Circuit has recognized that policy considerations are una voidable situations where EPA must weigh and balance scientific uncertainties in developing regulatory standards, citing Lead Indus. Ass’n, Inc. v.

### 14 EPA , 647 F.2d 1130, 1146- 47 (D.C. Cir. 1980). Thus , they conclude, if EPA proceeds with a positive endangerment finding under Section 202(a), it is well within the Agency’s discretion to defer promulgation of GHG emission standards in order to co nsider a number of policy and legal issues, and allow Congress to pass legislation d esigned to address the unique an d global challenges presented by

GHG emissions.

Finally, many commenters (3475.1, 3494.1, 3502.1, 4945) urge EPA to take action quickly. They note that it has been 10 years since the original petition requesting th at EPA regulate GHG emissions from motor vehicles was submitted to EPA. They argue that climate change is a serious problem that requires immediate action. Other commenters (3475.2) argue that EPA must go forward to fulfill its public health and welfare mandate, and NHTSA may n eed to adapt its standards accordingly, quoting the Supreme Court’s decision. These commenters believe that the agencies can continue to work cooperatively together.

Response (11-13): See the Findings, Section I.C, “P ublic Involvement,” for EPA’s re sponse to comment s regarding the timing of these Final Findings. In addition, EPA notes that it has proposed light-duty vehicle standards as part of its efforts to respond to the Supreme Court’s April 20 07 decision, which involves a rulemaking petition that is over 10 years old. EPA takes very seriously the obl igation to r espond to the Supreme Court’s opinion. In the joint “Notice of Proposed Rulemaking to Establish Light-Duty GHG Emission Standards and Corporate Average Fuel Economy Standards” (74 FR 49454; September 28, 2008), both EPA and NHTSA fully discuss how each agencies’ proposals are fully justified under their respective statutory authorities.

The commenter has asked that EPA defer issuance of final motor vehicle standards under Section 202(a) of the CAA, in response to EPA’s proposal to issue emissions standard s for light-duty vehicles and trucks. See 74 FR 49454 (September 28, 2009). The commenter’s request is directed at that rulemaking concerning adoption of motor vehicle standards. However, it is not relevant to this rulemaking, which addresses the issues of endanger ment and cause or contribute, but does not address either the content or timing of any appropriate emission standards under Section 202(a).

11.6.2 Petition for Formal Rulemaking Proceeding

Comment (11-14): One commenter (3411.1), with the support of others , requests that EPA undertake a formal rulemaking process for the findings, on the reco rd, in accordance with the procedures described in Sections 556 and 557 of the Administrative Procedure Act (APA). The commenter requests a multi-step process, involving additional public notice, an on-the-r ecord proceeding (e.g., formal admini strative hearing) with the right of appeal, utilization of the Clean Air Scientif ic Advisory Committee (CASAC) and its advisory proceedings, and designation of representatives from othe r executive branch agencies to participate in the formal proceeding and any CASAC advisory proceeding.

The commenter (3411.1) asserts that while EPA is not obligated under the CAA to undertake these additional procedures, the Agency nonetheless has the le gal authority to engage in such a proceeding. The commenter believes this proceeding would show that EPA is “truly committed to scientific integrity and transparency.” The commenter cites several cases to ar gue that refusal to proceed on the record would be “arbitrary and capricious” or an “abuse of discretion. ” The allegation at the core of the commenter’s argument is that profound and wide-ranging scientific un certainties attend both of the core issues at stake in the Proposed Finding and its TSD—causation and pr edicted impacts on health and welfare. To support

### 15 this argument, commenter provides lengthy criticisms of the science. The comment er also argues that the regulatory cascade that would be “unleashed” by a positive endangerment finding warrants the more formal proceedings.

Response (11-14): See the Findings, Section I.C, “Public Involvement ,” for our response to the petition to undertake a formal rulemaking under the Administrative Procedure Act.

11.6.3 Responding to ANPR Comments

Comment (11-15): Several commenters (e.g., 3307.1, 3384.1, 3476.1, 3553. 1, 3596.1) argue that EPA must respond to all of the comments received on the July 2008 ANPR (73 FR 44354), and not just a few key comments. They contend it is incumbent upon the Agency to res pond to those comments in compliance with the Administrative Procedure Act (APA). In the alternative, they request that the Agency fully respond to the

detailed science comments that were submitted on the ANPR.

Response (11-15): EPA uses ANPRs to notify the public about actions we are considering and to gather information on specific topics and the appropriate scope for rulemaki ng, but there is no requirement under the APA or CAA for the Agency to respond to comments filed as public comments during the comment period for the ANPR. To the extent commenters are suggesting that existing law prescribes such a requirement, they are incorrect. EPA did review the key comments on the ANPR related to endangerment. Moreover, many

commenters re-submitted their ANPR comments in this proceeding, and EPA considered all relevant, significant comments that were submitted in connection with this proceeding.

Comment (11-16): At least one commenter (2750) suggests that EPA sh ould discuss whether the federal agencies that

submitted comments on the ANPR were asked to submit new comments on the Proposed Findings, whether in fact they did submit new comments, wh ether any new comments were different, and how EPA has addressed any such comments.

Response (11-16): The Proposed Findings, and these Final Findings, have undergone interagency review pursuant to Executive Order 12866. The interagency comments s ubmitted by OMB during both interagency review periods are placed in the docket. As noted previously, the director of OMB issued a statement stating that “OMB would have not concluded [p reliminary] review [of the proposal], which allows the finding to move forward, if we had concerns about whether EPA’s finding was consis tent with either the law or the underlying science.” (http://www.whitehouse.gov/omb/blog/09/05/12/ClearingtheAir/.)

11.6.4 Transparency

Comment (11-17): Some commenters (3553.1, 4932.1, 11453.1) assert that EPA’s process has been “veiled in secrecy” and void of “transparency and accountability,” noting co mments from Congressmen Issa and Sensenbrenner. The commenter (3553.1) suggests that EPA has a “desire to promote an environmental agenda dominated by extreme special interest groups,” asserts that the Congressmen’s Freedom of Information Act (FOIA)

### 16 request was not properly handled, and reserves th e right to supplement comments with information received from FOIA requests.

Response (11-17): EPA has responded and will continue to respond to all FOIA requests in a timely and transparent manner. Congressmen Issa and Sensenbrenner received all material s requested in a timely fashion in light of the scope of their requests. The Administrator and EPA staff have not accorded privileged status to any special interest and have conducted a careful, critical , and independent examination of the options with regard to the proposed and final findings. We mainta ined an open-door policy on the Proposed Findings and discussed the proposed action with multiple a udiences. EPA remains committed to maintaining an open and transparent rulemaking pr ocess on all of our efforts.

Comment (11-18): Several commenters (3323.1, 4041.1, 4932.1, and 5158) argue that EPA’s office responsible for developing the endangerment findi ng ignored internal EPA comments presented in a memorandum. This memorandum, Proposed NCEE Comments on the Draft Tec hnical Support Document for Endangerment Analysis for GHG Emissions Under the Clear Air Act, was developed by Alan Carlin in EPA’s National Center for Environmental Economics (Carlin, 2009). One commenter (11460) states that EPA should take no further action until it publicly apologizes for trying to suppress the Carlin document. In addition, the

commenter states that because EPA suppressed the Carlin document, which raises serious doubts about EPA’s credibility, the Agency shoul d present all its evidence to an im partial agency judge, who will require that testimony on both sides be unde r oath and subject to cross-examination.

Response (11-18): EPA did not ignore the Carlin document. Our response regarding the review and evaluation of the issues it raised is provided in Volume 1 of the Respon se to Comments document, and (as noted there) we address specific scientific issues raised in the document in other relevant volumes.

The more inflammatory allegations of the comment ers with respect to “suppression” and their demands for “an apology” are not germane to this action. Th e document has not been suppressed. It has been on EPA’s web-site for several months, and has been reviewed and addressed through the public comment process. We respond to the commenter’s suggestion that EPA should present all its evidence to an impartial judge in the preceding Section 11.6. 2 “Petition for Formal Rulemaking Proceeding.”

11.7 Statutes and Executive Orders

11.7.1 Regulatory Flexibility Act

Comment (11-19): Several commenters (e.g., 3261.1, 3721.1, 4164) ch allenge the finding of no significant impact on a substantial number of small entities under the Regulatory Flexibility Act (RFA). They argue that even if the endangerment findings themselves do not impose any requirements, they are th e first step in a process that ends in full application of the CAA to GHGs because a final endangerment proposal does impose on EPA the obligation to issue regulations for new motor vehicles, which will, in turn, trigger PSD. Thus, commenters continue, a final endangerment finding w ill represent a legally binding commitment by EPA to regulate, and it should therefore have been acco mpanied by a complete statement of the risks and dangers posed by such commitment. Commenters (e.g ., 3214, 3324.1, 3423.2) in particular indicate concern about the impact of Title V and PSD permit programs, and they note that some environmental

### 17 groups already indicate their belief that a final enda ngerment proposal will tri gger PSD, which is another impact of the final finding that EPA fails to assess.

Many commenters (e.g., 3499.1, 3564.1, 3595.1, 3721. 1, 4164) e xpress concern that regulating CO 2 for the first time under the CAA will be complex and di sruptive and will negatively impact small entities (including small businesses, small communities, and local municipalities) because these entities are disproportionately impacted by the cost of compliance with regulation. Accordingly, they argue EPA must consider the views of small entities as required by the RFA as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA). Co mmenters (3575.1) recommend that EPA: 1) defer to ongoing efforts by Congress to en act climate change legislation; 2) defer any decision to regulate CO 2 until the Agency has gained experience with regula ting other GHGs; 3) establish applicability thresholds for GHG regulations that exempt small entities; and 4) conduct Small Business Advocacy Review Panels for sectors of the economy where small entities are heavily affected by GHG regulations. Commenters (e.g., 3721.1) assert that EPA must assemble “multiple SBREFA panels” to ensure that small business has a “meaningful seat at the rulemaking table as requi red by the RFA.” A commenter suggests that EPA withdraw the proposal to address these concerns.

Response (11-19): In compliance with the requirements of the RFA, EPA certified that the proposal as promulgated would not have a significant economic impact on a substa ntial number of small entities. However, EPA has acknowledged that small entities might have concerns about the potential impacts of the statutory imposition of PSD requirements that might occur gi ven EPA’s various GHG rulemaking efforts. As the potential burdens of such stationary source regulati on are being addressed in the Proposed Prevention of Significant Deterioration and Title V GHG Tailoring Ru le (74 FR 55292), EPA is “using the discretion afforded to it under Section 609(c) of the RFA to consult with OMB and the Small Business Administration (SBA), with input from outreach to sm all entities, regarding the potential impacts of PSD regulatory requirements that might occur as EPA cons iders regulations of GHGs” as part of the tailoring rule package. EPA will continue to assess any pot ential PSD impacts on small entities as we consider comments from the various rulemaking packag es and conduct our discretionary outreach.

As for the rest of the four specific recommenda tions summarized above, the first two recommendations regarding deferring final decisions are addressed el sewhere, and the third regarding applicability thresholds is addressed by the Proposed PSD and Title V Tailoring Rule.

11.7.2 E.O. 13175 (Consultation With Tribes)

Comment (11-20): One Indian tribe (4157) submitted a comment suppor ting EPA’s findings, as well as EPA’s approach not to issue standards concurrently with the finding but instead to issue the finding first while standards are being developed. The tribe noted its particular con cern about the impact of global climate change on natural resources on which its members rely and on th e environment of its reservation lands, forests, and waters. The tribe also expressed its views that sep arate actions proposing standards for regulation of GHGs will have important implications for Indian trib es and that EPA would be required to consult with tribes on any such actions.

Response (11-20): EPA welcomes the tribe’s expression of its interest in issues relating to climate change in connection with potential separate EPA actions developing standards. EPA notes that, as appropriate, the Agency works and consults with federally recognized Indian tribes on EPA’s actions and that EPA will consider tribal interests as relevant separate actions rela ting to climate change are developed.

### 18 Regarding the tribe’s concern about the impacts of climate change on natural resources, we agree that certain Native American tribes, particularly those th at are dependent on one or a few natural resources, possess unique vulnerabilities to the risks of climate cha nge (Karl et al., 2009; Fi eld et al., 2007; ACIA, 2004). These and other impacts of climate change are summarized in the TSD and are part of the information the Administrator drew upon in her endangerment analysis.

11.7.3 E.O. 13211 (Energy Supply, Distribution, or Use)

Comment (11-21): Some commenters (e.g., 3329.1, 3452.1, 4002) strongl y disagree with the Agency’s decision that the finding does not constitute a “significant energy ac tion” as defined in Executive Order 13211 (66 Fed. Reg, 28,355 (May 22, 2001)), “because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.” They contend that the very basis of the findings, under Section 202(a) of the Act, revolves around motor vehicles, which require “energy” (in the form of motor fuels) to operate. The commenters continue that any and all regulation g overning the future of mo tor fuel usage will ipso facto have a significant adverse effect on the supply, distribution, and use of energy. One commenter argues that there is no discussion regarding the pote ntial for reduced supply th at will ultimately drive up consumers’ energy costs, and/or increase foreign imports of energy supplies. They request the EPA reevaluate the impacts of its proposed actions on the nation’s energy source s, supply, distribution, use, in

accordance with Executive Order 13211.

Response (11-21): As described in other responses in this volume, the Final Findings are not a regulation promulgated under Section 202(a) of the CAA. They do not include any regulatory text, and they do not impose any requirements on any person other than EPA. Thus, th e Final Findings do not impose requirements on the supply, distribution, or use of energy, and the fact th at motor vehicles use energy does not mean that this action impacts the supply, distribution, or use of en ergy. To the extent the commenters are arguing that any and all motor vehicles and fuels regulations will be a significant energy action, those comments must be made in the context of those par ticular rulemakings, not this action.

11.8 Roles of the Clean Air Act and Legislation

Comment (11-22): Numerous commenters (e.g., 0639.1, 1927, 3012, 3324.1, 3327.1, 3509.1, 3530.1, 3558.2, 3605.1, 3916, 4457.1, 10697) argue that the CAA is not the appropria te mechanism to address climate change, and urge EPA to reconsider use of the CAA. They raise a “cascade of unintended regulatory consequences” that they argue will flow inextricably from a final enda ngerment finding; some cite to Congressman Dingell’s reference to a “glorious mess.” At least one commenter (3530. 1) refers to “a Pandora ’ s box of devastating regulation and uncertain environmental benefit.” Co mmenters (e.g., 1927, 3012, 3324.1, 3327.1, 3384.1, 3476.1, 4457.1), argue that there are implications for almost every facet of the economy and the effects in businesses, consumers, auto users, homeowners, and the population in general, and that the CAA is ill-equipped to deal with these issues. Some commenters (4457.1) cite statements from other federal agencies included in the July 2008 ANPR (73 FR 44354) to support their arguments that the CAA is ill-suited to address climate change. Some commenters (3012, 3558.2, 3916, 10697) describe EPA’s use of the CAA as a powe r grab aimed at controlling the country’s economy. Numerous commenters (e.g., 1927, 3327.1, 3384.1 3423.2, 3324.1, 3605.1) specifically discuss broadly how various sections of the CAA are not appropriate mechan isms to address GHGs (e.g ., Sections 108, 111,

### 19 112). Some commenters (e.g., 3384.1, 3423.2, 3476.1) tie these comments to endangerment language in various sections of the CAA, while others talk more generally.

On a related matter, several commenters (3360, 3394.1, 3704.2, 3430.1) urge EPA to defer regulating

GHGs under the CAA until Congr ess has further debated and develope d comprehensive climate change legislation. Commenters (2892.1, 2895, 3555.1, 4457.1) note that the President and the Administrator have both indicated their preference for legislation. Many commenters (3198.1, 3 509. 1, 3553.1, 4457.1, 5400, 11341) indicate their preference for legislation to address climate change. Some commenters (2039, 4109, 4184, 4457.1) set forth their proposed approaches for such legislation.

Other commenters (3475.2, 4036.5), some of whom also support legislation, ar gue that the claim by some opponents of EPA action that the Agency can not sensibly tailor its GHG emission mitigation policies under the CAA is just another effort to delay and forestall any federal action on GHGs. These commenters note that EPA has ample discretion to tailor policies under the CAA, and that part of the CAA’s success in securing critical protection s for human health and the environment is due to the inherent flexibility the Act affords EPA in carrying out its statutory mandates.

Response (11-22): Administrator Jackson has expressed her preference for comprehensive climate change legislation over the use of the current CAA to tackle climate change, but she has also described her duty to respond to the Supreme Court’s remand. As noted in the Final Find ings, more than two-and-a-half years have passed since the remand from the Supreme Court, and 10 y ears have passed since EPA received the original petition. EPA has a responsibility to respond to the Supr eme Court’s decision and to fulfill its obligations under current law, and there is good reason to act now gi ven the urgency of the threat of climate change and the compelling scientific evidence.

We agree with the commenters who believe that EPA has the ability to fashio n a reasonable and commonsense approach to address GHG emissions and climate change. EPA has and will continue to take a measured approach to address GHG emissions. For example, the Agency’s recent Mandatory Reporting Rule and Proposed PSD and Title V Tailoring rule fo cus on only the largest sources of GHGs in order to

reduce the burden on smaller facilities.

This action is not the forum for debate on the a ppropriate form and scope of new climate change legislation. Thus, we are not opining on any of the suggested approaches to legislation contained in the

comments.

11.9 PSD and Title V Programs

Comment (11-23): Some commenters (2898.1, 3217.1, 3232.1, 3324.1, 3423. 2, 3476.1, 3704.2) appear to believe that a final endangerment finding would trigger PSD for GHGs. Th ey state that once GHGs are declared an “air pollutant” for purposes of motor vehicles in Section 202, they will certainly be an “air pollutant” for purposes of Section 169, and that PSD will apply. Certain commenters (3414.1) reiterate their disagreement with EPA’s current position that a fi nal endangerment finding would not trigger PSD, noting that while they appreciate EPA’s reconsid ering the memorandum adopting this position, the commenter has sued EPA over the memorandum; the commenter also reiterates the reasons why it disagrees with EPA. Still other commenters agree with EPA’s statements in the proposal that a final endangerment finding would not trigger PSD.

Response (11-23):

### 20 It is EPA’s current position that these Final Fi ndings do not make well-mixed GHGs “subject to regulation” for purposes of the CAA’s PSD program. (See Johnson, 2008.) While EPA is reconsidering this memorandum and is seeking public comment on th e issues raised in it generally, including whether a final endangerment finding should trigger PSD, the effectiveness of the positions provided in the memorandum was not stayed, pending that reconsider ation. (Prevention of Significant Deterioration (PSD): Reconsideration of Interpretation of Regul ations That Determine Pollutants Covered by the Federal PSD Permit Program, 74 FR 515 135, 51543-44 [Oct. 7, 2009]).

Comment (11-24): Many commenters (e.g., 2891, 2898.1, 3217.1, 3218.1, 3232.1, 3252.1, 3286.1, 3288.1, 3297.1, 3307.1, 3324.1, 3332.1, 3476. 1, 3423.2, 3704.2) express concern specifical ly about the impact of a final vehicle standard on stationary sources of GHG emissions. In particular, most commenters focus on the immediate impact of the PSD and Title V permitting programs on ce GHGs are regulated pollutants, listing concerns such as the impact on various sectors of the economy and overall economic growth more generally; severe administrative, logistical, and economic burdens on st ate permitting agencies and the regulated community; potential conflicts between CAA authority and existing regulatory programs of other federal agencies; and regulatory uncertainty for U.S. i ndustries, consumers, and government stakeholders. They question EPA and state agencies’ ability to deal with the increase in permitting under these programs and to tailor or phase-in applicability of the PSD and Title V program s, arguing that EPA cannot ignore the statutory thresholds. Commenters (2898.1, 3217.1, 3232.1, 3704 .2) also question the ability of members of two major environmental groups to represent the views of all environmental groups when saying they will not challenge EPA’s ability to tailor the permit programs. They attack other concepts discussed in the ANPR, including presumptive Best Available Control Technolo gy (BACT) and revised approach to “potential to emit.” Commenters (3324.1, 3476.1, 3423.2) also challenge EPA’s analysis in the ANPR, arguing that EPA underestimated the impact on the PSD and T itle V programs. Commenters associated with the agriculture industry (3600.1, 3615.1, 4169) raise concer ns about the so-called “cow tax” that they allege would result from regulation of GHGs under CAA Title V.

Other commenters (3475.2, 3605.1, 4036.5) agree with EPA’s ability to tailor and phase-in stationary source permitting programs for GHGs.

Response (11-24): As discussed in our preceding response (11-23), these Final Findings do not make well-mixed GHGs “subject to regulation” for purposes of the PSD or Title V programs.

Note, however, that EPA has proposed new threshol ds for GHG emissions that define when PSD and Title V permits are required for new or existing f acilities. (PSD and Title V GHG Tailoring Rule [74 FR 55292, October. 27, 2009]). That rulemaking is the a ppropriate forum for raising the concerns in this comment. The proposed thresholds would “tailor” th e permit programs to limit which facilities would be required to obtain PSD and Title V permits. Speci fically, the proposed rulemaking establishes a first phase, lasting six years, which would establish the th reshold for PSD and Title V applicability at 25,000 tons per year on a CO 2 equivalent basis. After six years, EPA would complete another rulemaking that would promulgate, as the second phase, revised applicab ility thresholds, as appropriate. 74 FR at 55292.

As noted in the preamble for the proposal, EPA also intends to evaluate ways to streamline the process for identifying GHG emissions control requirements a nd issuing permits. This would reduce costs and increase efficiency for both sources and for state perm itting agencies, which in most cases are responsible for issuing the permits. EPA also plans to develop supporting information to assist permitting authorities as they begin to address permitting actions for GHG em issions for the first time. Although EPA has not yet identified specific source categories, the Agency plans to develop sector- and source-specific guidance

### 21 that would help permitting authorities and affect ed sources better understand GHG emissions for the selected source categories, methods for estimating th ose emissions, control strategies for GHG emissions, and available GHG measurement and monitoring techni ques. This guidance also will include approaches for making BACT determinations as required for a PSD permit. EPA expects that “[t]his information will be particularly helpful to permitting authorities in making BACT determinations for GHG for sources trigger PSD during the phase-in period.” 74 FR at 55348.

Regarding concerns about the so-called “cow tax” under CAA Title V, EPA assures commenters that it is not proposing a cow tax. As discussed previously, EPA has proposed a rule focusing on large facilities emitting more than 25,000 tons of GHGs a year. Small fa rms, restaurants, and many other types of small facilities are projected to be below this threshold.

11.10 Impact of Final Findings on Other CA A Sections With Endangerment Language

Comment (11-25): Numerous commenters (3214.2, 3560.2, 3592.1, 3699.1, 4155, 4173) discuss how final endangerment and cause or contribute findings under Section 202(a) may impact other provisions in the CAA that contain similar endangerment language. At least one commenter (4173) states that the tests for endangerment differ significantly throughout the CAA and that, in crafting those various tests, Congress intended that any endangerment finding under the CAA should be specific to a source and reflect its relative contribution of the particular poll utants that served as the basis fo r the finding. The commenter then provides an analysis of various sections in support of its statement. This commenter makes similar statements and arguments regarding the cause or contribute findings. Similarly, one commenter (4155) notes that extending a finding of endangerment to ot her sections of the Act would depend on: 1) the basis for the finding, 2) the pollutant at hand (e.g., polluta nts considered as a group or as individual pollutants), 3) the statutory tests in each CAA section, and 4) the underlying facts. At least one commenter (3394.1) provides similar analyses explaining why they belie ve a final Section 202(a) endangerment finding does not trigger a similar finding under other parts of the CAA (e.g., Sections 108, 115).

Other commenters (3347.1, 3509.1, 3560.2, 3592.1, 3699.1) note that although the endangerment language in each CAA section is slightly different, eac h section generally calls for similar analysis of the impact of the air pollution at issue; thus, a positive GHG endangerment finding under one provision is likely to flow over into other provisions. These co mmenters (3347.1, 3509.1, 3560.2, 3592.1, 3699.1) express concern that a regulatory “cascade” of conse quences will reverberate throughout the Act, because the endangerment finding cannot be self-contained by EPA.

Mobile Sources At least one commenter (3609.1) argues that the judgm ent triggering EPA’s Section 202(a)(1) authority is essentially the same as that triggering EPA’s authority under Sections 211, 213, and 231, thus if the

Administrator determines that emissions from the s ource at issue are sufficiently connected with “air pollution which may reasonably be anticipated to endanger public health or welfare,” then the Administrator is empowered to regulate those emi ssions. This commenter states that EPA cannot avoid considering the key questions underlying the marine vessels and aircraft petitions.

Other commenters (2892.1, 3704.2) suggest that EPA exercise care and proceed thoughtfully and cautiously before regulating mobile sources under the C AA. They note that mobile source regulation in general is complex and involves overl apping layers of federal and inte rnational authority that must be accommodated and respected. Commenters (e.g., 2892.1) ar gue that EPA must work with other pertinent agencies to identify those sector-speci fic and agency-specific options that are most appropriate to regulate GHG emissions, some of which may not necessar ily fall under the auspices of the CAA.

### 22 At least one commenter (3348.1) requests that mari ne shipping be considered separately from other

sectors due to its international nature and low carbon f ootprint, and that it is already being addressed by the International Maritime Organization.

NAAQS Some commenters (3217.1, 3384.1, 3560.2, 3704.2, 3764.1) argue that an endangerment finding under

one section of the statute will have a domino effect th roughout the act, contending that the issuance of an NAAQS for that air pollutant would not be discretionary. They question EPA’s statements in the ANPR that EPA could issue an endangerment finding fo r GHGs under CAA Section 202 but not promulgate a GHG NAAQS under Title I, by abstaining from setting air quality criteria under CAA Section 108. (73 Fed. Reg. at 44478.) Commenters note that EPA alr eady attempted this maneuve r to avoid promulgating an NAAQS for lead, and failed (citing NRDC v. Train , 545 F.2d 320 (D.C. Cir. 1976)). Numerous commenters (3217.1, 3318.1, 3384.1, 3560.2, 3567.1) provide detailed anal yses of how they believe regulation of GHGs through the NAAQS system does not make sense.

Other commenters (2892.1, 3252.1, 3320.1, 3394.1) co ntend that an endangerment finding under Section

202 of the CAA would not necessitate li sting under Section 108, noting that there is a third element to the listing requirements of Section 108. Some commenters (3252.1, 3320.1, 3394.1) believe that the reason a Section 202 endangerment finding woul d not satisfy the Section 108 endangerment finding test is because the record for the Section 202 finding is not limited to “ambient air.”

Stationary Source Emissions Standards Many commenters (3217.1, 3384.1, 3560.2) contend th at the issuance of an endangerment finding under

Section 202 would necessitate the same under Sectio n 111 regarding New Source Performance Standards (NSPS). Commenters (e.g., 3322.3) note the various pe titions or lawsuits alrea dy filed regarding EPA’s regulation of GHGs under Section 111. Some comment ers (3394.1, 3605.1, 3704.2) request that EPA exercise its discretion, as noted in the final NSPS re visions for petroleum refineries, to abstain from regulating GHGs under Section 111 at this time. Other commenters (2892.1, 2898.1, 3335.1, 3491.1) express concern that an endangerment finding under Sec tion 202 could lead to regulation under Section

112 and discuss how this would be undesirable.

Response (11-25): EPA reviewed the comments analyzi ng various provisions of the CAA and how they may be impacted by final findings under Section 202(a). However, these Final Findings are being made solely under Section 202(a) of the CAA regarding new motor vehicles and new motor vehicle engines. Consistent with the Supreme Court’s decision, the Final Findi ngs were based on the science and the statutory language of Section 202(a). Alth ough several sections of the CAA contain similar endangerment and cause or contribute language, the Administrator is not making any endangerment or cause or contribute findings under any other CAA sections by this ac tion. EPA does have before it several pending petitions, rulemakings an d judicial cases in which stakeholders argue that EPA should regulate GHG

emissions under various sections of the CAA. Th e Agency continues to evaluate those requests. However, it is not opining about them in this Section 202(a) action. If and when EPA takes action under other sections of the CAA regarding GHGs, the Agency will make any required determinations concerning endangerment and/or cause or contribute.

We note that the ANPR published in July 2008 provides detailed discussions on various sections of the CAA, and how they may be applicable to the regulation of GHGs. 73 FR 44354. We encourage interested stakeholders to review it for further information. In particular, Section IV of the ANPR provides an overview of the CAA and interconnections among various CAA provisions, including a discussion of the similar endangerment language th at appears in numerous sec tions of the CAA and the

### 23 potential impact across the CAA from an endangerment finding under one section of the Act. 73 FR at

44417-21. The rest of the ANPR sets forth details of the various CAA sections that may apply to both mobile and stationary sources of GHGs. For example, Section VII.A. covers the NAAQS and Sections

107-110. Id . at 44477-86. It discusses the requirements for setting and implementing a NAAQS, including listing an air pollutant under Section 108(a)(1), noting that there are three criteria for listing under Section 108(a)(1), but only the first two are potentially impacted by a positive endangerment finding for GHGs under Section 202(a). Id . at 44477. The ANPR then proceed s to set forth in detail the steps and timeline for setting a NAAQS under Section 109, designa ting areas as attainment or nonattainment under Section 107, and submitting and approving state implementation plans under

Section 110.

Regarding the commenter’s suggestion that EPA exer cise care and proceed thoughtfully and cautiously in regulating mobile sources under the CAA, EPA will continue to exercise care and consideration as we pursue a number of initiatives to address climate change . We have and will conti nue to coordinate with the appropriate federal agencies, as we have demonstrat ed with our joint proposal with the Department of Transportation’s National Highway Traffic Safety Administration for light-duty vehicle GHG emissions standards and CAFE standards for new light-duty cars and trucks sold in the United States.

11.11 Suggested Alternat ives to Sect ion 202(a)

Comment (11-26): In response to language in the proposal providing tips about how to prepare comments (i.e., “offer alternatives”), several commenters (3354.1, 3509.1, 3 577.1) suggested that EPA use Section 115 before Section 202 if addressing GHGs under the CAA. Co mmenters (3509.1, 3577.1) note that although addressing global GHG pollution under Section 115 allevi ates some of the concerns related to an endangerment finding under Section 202, it has its own limitations and concerns, including most importantly, that it would require states and localities to address at a local level what is clearly a global issue. Nonetheless, commenters (3509.1, 3577.1) ar gue that EPA’s attempt to address a global air pollution matter by relying on an international repor t without evaluating the requirements under Section 115 is arbitrary and a violation of the CAA. They co ntend that when EPA receives an international report

and EPA has reason to believe that emissions in the Un ited States cause or contribute to air pollution that may reasonably be anticipated to endanger public h ealth or welfare in a foreign country, Section 115 appears to be the more appropriate section under the Act. They note that this section is different than EPA’s proposed endangerment findi ng under Section 202, in that it is the only provision of the Act allowing consideration of internati onal endangerment. They admit that although to date, Section 115 has not been used to regulate domestic emissions that are connected to international air pollution, this is only

because each time its use was consid ered, Congress enacted legislation (citing acid rain and stratospheric ozone). Commenters (3509.1, 3577.1) continue that because each time Congress enacted legislation that avoided the need to turn to Section 115, Section 115 was left in place, Congress must have intended Section 115 to have some purpose. Despite this histor y, they note that EPA has not addressed Section 115 in any manner in the proposal. They request that EPA withdraw the proposal and evaluate Section 115 as

an alternative vehicle if EPA moves under the CAA.

At least one commenter (3252.1) argues that a final endangerment finding under Section 202 of the CAA would not satisfy the criteria necessary to regulate unde r Section 115 of the Act. They note that before regulating under Section 115, EPA would need to ex amine issues such as whethe r the foreign nation in question gives the United States reciprocal rights (a prerequisite to any Section 115 regulation) and whether revisions to state implementation plans r esulting from any EPA decision under Section 115 could “prevent or eliminate the endangerment” (another S ection 115 requirement). EPA would also have to

### 24 show that it has “sufficient evidence correlating th e endangerment to sources of pollution within a particular State,” a criterion EPA and the courts have drawn from Section 115.

Response (11-26):

EPA does not believe that Section 115 means that EPA can refuse to make the decision pending before it under Section 202(a) for regulation of GHG emissions from new mobile sources. These Final Findings are being made in response to the Internationa l Center for Technology Assessment (ICTA) petition submitted in October 1999, which specifically requ ested that EPA regulate GHG emissions from new

motor vehicles under Section 202 of the CAA. Per the Supreme Court’s instructions, “EPA can avoid taking further action [under Section 202] only if it determines that GHGs do not contribute to climate change or if it provides some reasonable explanatio n as to why it cannot or will not exercise its discretion to determine whether they do.” (549 U.S. at 533.) As discussed elsewhere, any such reasonable explanation “must relate to whether an air pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endange r public health or welfare.’” Id . at 532-33. Thus, EPA must make a decision under Section 202(a) based on the science; it c ould not decline to regulate under Section 202(a) based on any potential policy preferences to use anot her section of the CAA instead. Indeed, this argument is very similar to arguments that EPA made in its original denial that were rejected by the Court. ( Id . at 533 [“Although we have neither the exper tise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether GHG emissions contribute to climate change.”])

In addition, while the Administrator could exercise her authority under this provision if EPA were to promulgate an NAAQS for GHGs, the provision is no t appropriate to address mobile source emissions. Section 115 creates a mechanism through which EPA can require states to amend their state implementation plans (SIPs) to address international transport issues. It is designed to protect public health and welfare in another country from air pollu tion emitted in the United States, provided the United States is given essentially reciprocal rights with r espect to prevention and control of air pollution originating in the other country. The requisite finding under Section 115 has the same regulatory consequences as a finding that the state’s existing SIP is inadequate to attain the NAAQS or otherwise meet the requirements of the Act. Because a Secti on 115 notification would require the notified states to modify their SIPs to prevent or eliminate the enda ngerment, EPA reasonably interprets Section 115 to apply only in connection with the SIP program, not in connection with mobile source standards. EPA does not believe that it would be appropriate to u se Section 115 as an alternative to section 202(a) for regulation of GHG emissions from new mobile sources

Finally, see Section III.D and IV.A.7 of the Final Fi ndings for a discussion about how EPA can consider the global air pollution under Section 202, despite the presence of Section 115 in the Act.

Comment (11-27): Other commenters (2818) suggested that EPA use th e NAAQS system under Sections 108-110 before using Title II to address GHGs. They argue that EPA is putting the cart before the horse, by indicating plans to use a gram-per-mile standard on only new vehicles, when more than 70 percent of U.S. GHG

emissions from other sources would remain uncontrolled.

At least one commenter (3354.1), while not ad vocating an NAAQS system for GHG per se and disagreeing with EPA’s historic practice of administer ing Section 179B, notes that in theory Section 179B offers a great deal of hope to states and coun ties faced with potential GHG NAAQS and nationwide

nonattainment.

Response (11-27):

### 25 As discussed previously, these Final Findings are be ing made in response to the ICTA petition submitted in October 1999, which requested that EPA re gulate GHG emissions from new motor vehicles under Section 202 of the CAA. Thus, EPA is appropriately focusing on Section 202 of the CAA in this action, and not opining about suggestions to use additiona l sections of the CAA as well, and/or how those sections may be implemented in the future.

11.12 Potential Other Legal Impacts of Final Findings

11.12.1 National Environmental Policy Act Considerations

Comment (11-28): Some commenters (3347.1, 3509.1) express concern that an endangerment finding and attendant regulations could affect both compliance and the scope of environmental planning under the National Environmental Policy Act (NEPA). Specifically, th ey contend that the endangerment finding and language supporting the finding will likely make it mo re difficult and costly to meet NEPA and other environmental planning statutes because no models curre ntly exist that forecast the potential impacts of GHGs on climate change at such levels. Yet, without a model available, they continue, federal agencies may be left with no ability to address GHG emissions in the Environmental Impact Statement (EIS),

because there are no GHG emissions standards to ser ve as thresholds, no tools to analyze local GHG impacts, and compliance cost could easily exceed li mited agency resources—leaving agencies vulnerable to litigation over potentially inadequate current and fu ture environmental impact statements. Furthermore, they argue that language in the proposal could pote ntially trigger the NEPA process for federal projects that result in even the slightest changes in GHG emissions, focusing on what they consider broad conclusions regarding potential hea lth and welfare effects that have not been demonstrated with a significant degree of scientific confidence and selectively picks and chooses the supporting science. Commenters (e.g., 3347.1) note that state environmental planning statutes pose similar problems, citing the California Environmental Quality Act (CEQA) as an example of a statute that has held up the construction of a wide range of projects, such as pow er plants, high-occupancy vehicle (HOV) lanes, and

Wal-Mart stores.

Response (11-28): These findings are being made under the CAA and are b ased on the statutory language of Section 202(a). When complying with any applicable NEPA require ments, federal agencies should follow their NEPA regulations and Council on Environmental Quality (CEQ) regulations and guidance. Further, EPA disagrees with claims that the findings contain broa d conclusions regarding pu blic health and welfare effects that have not been sufficiently demonstrated or are based on selective review of the science. See Volume 1 of the Response to Comments document and the Section III of the Final Findings for further discussion of the robust record supporting the Final Findings.

11.12.2 Potential for Increased Civil Litigation

Comment (11-29): Many commenters (3293.1, 3347.1, 3702.1, 3704.2, 4508) e xpress concern that a final positive endangerment finding would result in more citizen suits against industry alleging tort and environmental justice claims. For example, one commenter’s (3293. 1) chief concern regarding the endangerment finding is that it could potentially encourage a flood of lawsu its against companies that emit GHGs claiming that such activities constitute “negligence” or a “nuisance.” The commenter d escribes five “global warming” tort cases have already been filed. Commenter (3347.1, 3704.2) note that Congr ess is better equipped than

### 26 the courts, or EPA, to tackle the issues involved in addressing a global challenge like climate change. Thus, they request that EPA clarify the endangerment finding is not intended to create evidence that could be used in tort lawsuits. Other commenters (3702.1) ur ge EPA to reconsider finding that current levels of GHGs endanger public health and welf are due to concern about tort litigation involving companies that supply products that contain GHGs or that di rectly release GHGs from manufacturing and other

processes.

Still other commenters (e.g., 3347.1) express concern that EPA has paid no attention to the consequences an endangerment finding would have on environmental justice claims. They highlight the following language from the proposal in support of their con cerns: “certain parts of the population may be especially vulnerable based on their circumstances. These include the poor, the elderly, the very young, those already in poor health, the disabled, those living alone, those with limited rights and power . . . and/or indigenous populations depe ndent on one or a few resources.”

Response (11-29): The Final Findings are being made under Section 202( a) of the CAA and are based on the science and the applicable CAA statutory language. Regarding environmen tal justice issues, we note that Section I of the Findings state that “the Administrator places weight on th e fact that certain groups, including children, the elderly, and the poor, are most vulnerable to these clim ate-related health effects.” The Administrator has considered climate change risks to minority or low income populations as part of these findings in

accordance with the sci ence and the applicable CAA statutory la nguage. As described in other responses in this volume, the Administrato r focuses her endangerment analysis on the science of GHGs and climate change, and not on the potential ramifications for civil tort litigation (corporate- or environmental justicerelated) of regulations that may follow positive endangerment and cause or contribute findings.

This action is not the appropriate forum for opining on civil tort litigation. The issues before EPA concern the contribution of emissions from new motor vehicles and the impacts of the air pollution on the public

health or welfare.

11.12.3 Carbon Dioxide Injection and Geologic Sequestration

Comment (11-30): At least one commenter (3384.1) expresses concern about the impact of an endangerment finding on carbon dioxide injection and geologic sequestration pr ojects. The commenter is worried that the finding

would result in CO 2 injectate potentially being categorized as a po llutant or waste, raising the potential of the application of Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liabili ty Act (CERCLA) to enhanced oil recovery operations and geologic sequestration efforts. The co mmenter is concerned that application of such regulatory regimes to the carbon sequestration program woul d likely deter, or at least dramatically reduce,

future investment in those areas.

Response (11-30):

Whether CO 2 injectate is a RCRA hazardous waste or a CERCLA hazardous substance, pollutant, or contaminant under either statute or applicable EPA regulations does not rela te to any endangerment finding under CAA Section 202(a). EPA’s regulation of materials that are “solid waste” does not depend upon, and is unaffected by, a CAA endangerment finding. See RCRA Section 1004(27) (defining “solid waste” to include solid, liquid, semi-solid or contai ned gaseous material resulting from a wide range of activities). Moreover, RCRA regulations define “solid wastes” as hazardous when they are listed in, or exhibit certain characteristics as defined by, 40 CFR Part 261. Neither the listing nor characterization regulations depend on the presence or absence of a ny endangerment fi nding under CAA Section 202(a).

### 27 Similarly, the definitions of “hazardous substance” and “pollutant or contaminant” contained in Sections 101(14) and (33) of CERCLA do not reference or otherwise depend on any endangerment finding under CAA Section 202(a). See also 40 CFR 300.5 (regulatory definitions similar to CERCLA statutory definitions). EPA discusses the app licability of RCRA and CERCLA to CO 2 injectate and geologic sequestration in its proposed Federal Requirements Under the Un derground Injection Control (UIC) Program for Carbon Dioxide (CO 2 ) Geologic Sequestration (GS) Wells , 73 Fed. Reg. 43492, 43503-04 (July 25, 2008).

11.12.4 Preemption of State Efforts

Comment (11-31): At least one commenter (3414.1) asks that EPA state explicitly that its endange rment finding does not in any way preempt state endangerment findings or global warming control efforts, so long as such state efforts do not provide for, or allow, less protec tive regulation of GHGs than under federal law.

Response (11-31): EPA is on record as clearly supporting state action to reduce emissions of greenhouse gases. As noted in the Mandatory Reporting of Greenhouse Gases, Fina l Rule, EPA stated: “EPA supports and recognizes the success and necessity of State programs as a vita l component in achieving GHG emissions reductions, particular focused on energy efficiency improvement s.” (74 FR 56284). However, for purposes of this action EPA did not propose for consideration any position on preemption and at this time takes no position on whether this action preempts any particular state endangerment finding or effort to reduce greenhouse gases.

Further, we note that on May 20, 2009, President Obama issued a Memorandum on Preemption, which cites Executive Order 13132, Fe deralism (August 4, 1999) with ap proval. The memorandum stated President Obama’s policy that “preemption of Stat e law by executive departments and agencies should be undertaken only with full consideration of the legiti mate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments an d agencies should be mindful that in our Federal system, the citizens of the several States have dis tinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values.” Moreover, the preemption provisions of EO 13132 on Federalism state that agencies should construe federal statutes as preemp ting state law or issue regulations authorizing preemption only where the statute contains an expr ess preemption provision, there is clear evidence that Congress intended to preempt state law, or the exercise of state authority conflicts with the exercise of federal authority. EO 13132, Section 4 (a)-(b).

11.13 Other Miscellaneous Comments

Commenters provide a variety of information not ge rmane to the specific statutory issues before EPA. Such information ranges from detailed, specific comments on all parts of the ANPR, to lengthy descriptions of potential regulatory or legislativ e approaches for reducing GHGs, to concerns about energy security, to EPA’s moral obligation to regu late GHGs. A summary sampling of these comments is provided below to illustrate the breadth of the scope of comments received.

Comment (11-32): Many commenters attach their comments on the ANPR in their entirety, rather than those sections related to this action. Thus, for example, they include co mments about EPA’s authority to adopt cap and trade

### 28 approaches under various sections of the CAA. Co mmenters also include opinions about various technology issues discussed in the ANPR. They al so include detailed comments about other pending petitions before EPA and EPA’s author ity under various sections of the CAA not at issue in this action (e.g., EPA’s authority under Section 231 to regulate ai rcraft, EPA’s authority under Section 213 regarding marine vessels, EPA’s authority under Section 615). Several commenters provide their preferences for how EPA should address GHG emissions from stationary sources–some strongly urging EPA to control GHG emissions from stationary sources, and others advise that EPA restrain from doing so. One commenter (3435.1) requests that the finding recognize that biomass-derived fuels are carbon neutral. Another commenter (3414.1) urges EPA to grant Calif ornia’s request for a waiver under Section 209 of

the CAA

Several commenters (e.g., 2895, 3561.1, 4039.1) suggest expanding the source categories. One commenter (1191.1) notes that if the EPA can include in the Findings sulfur hexafluoride and perfluorocarbons, which are not Section 202(a) gases, th en it is arbitrary and capricious to not also

include the 76% of GHGs from non-mobile sources as well, and encourages broad inclusion of sources. Another commenter (1663) states that factory farmi ng emits more GHGs than the mobile source category and many commenters (e.g., 934, 987, 1666, 2149, 2 182, 2895, 3403) address the agriculture sector. One commenter (3403) wants building construction and renovation addressed. One commenter (3295.2) supports EPA’s actions, but reminds the EPA that there are pending petitions addressing ocean-going, marine shipping, aircraft, nonroad vehicles and engines, and vehicle fuels (particularly marine fuel), and mandatory reviews of stationary source performance standards under Section 111, and other commenters (e.g. 3414.1) offer similar statements in favor of av iation emission control due to the increased impact of high altitude emissions. Commenters (e.g. 3417, 3426, 4036.1) also support the EPA action, but urges inclusion of power producers and other stationary sour ces, especially coal fired power plants (commenter 4036.1 specifically urges action under Section 111). Commenter (2818) points out that power producers may provide electricity for electric vehicles, and th erefore should be discussed in the finding. Commenter (2895) discusses the other negative impacts of coal mining and commenter requests that EPA rescind the approval of mountaintop removal perm its. Commenter (2895) requests inclusion of the military-industrial complex and the explosions of fireworks. Commenter (3483.1) suggests prioritization of large stationary sources and the transport sector, due to their contributing 74% of US GHG emissions.

In contrast, another commenter (3289.1) cautions th at the forestry sector should not be included as a stationary source because a forest is not a “facility ” or an industrial source, nor can pollution control technologies be installed in forests. However, the co mmenter suggests that the forestry sector can enter into productive voluntary collaborations addressing cl imate change through carbon capture and storage. Similarly, a commenter (3290.1) states that agriculture should not be considered as a stationary source

because that would be inconsistent with the Clean Air Act. Another commenter (3382.1) addresses the dairy sector, noting that GHG regulation of the sector will favor fixed technology standards and large operations, which will work against GHG reductions. Commenters (3754.1, 3892. 1, 3964) worry about legal liability for farmers based on the ruling. One commenter (3892.1) notes that modern agricultural milk production produces only one-third of th e GHG footprint as it used to in 1944.

Numerous commenters (e.g., 0572, 0920, 1310, 1561.1, 2253, 2892.1, 2984.1, 3289.1, 3302.1, 3318.1, 3975, 9398) discuss various options for a ddressing and regulating GHG emissions. Their recommendations include emphasizing a need for coordination involving the EPA, the Administration, and Congress; encouraging the private and public sector s to work in accord; suggesting that regulations should partially or wholly target efficiency gains; emphasizing the cumulative impacts of GHG emissions and considering life cycle analysis; encouraging the invention of new low-emission technologies; suggesting that private forests could play a key role in addressing climate change; advocating for a market-based based program that supports agriculture ’s role as a source of carbon offsets; and suggesting that EPA should consider the potential of conges tion reduction for reducing GHGs. A few commenters

### 29 (1309.1, 7031) state their belief that EPA should fo cus on adaptation to climate change instead of GHG regulations because it is more cost-effective than miti gation. One commenter (1561.1) states that there is a need for federal leadership on adaptation, as well as for an inte rnational funding mechanism for adaptation. Many commenters (3609.2, 4249, 8560, 9848, 10809, 11305) also indicate that “...comprehensive [Congressional] climate legislation” a nd/or “a coordinated federal approach” is key to managing GHG emissions.

Numerous commenters (e.g., 0276, 0362, 0524, 1018.1, 1117.1, 1118.1, 1157.1, 1158.1, 1185.1, 1189.1, 1539.1, 1919.1, 3002, 3021, 3031, 3132, 3155, 3485, 3487, 3580, 3587, 3621, 3658, 3996, 3621, 4800, 4846, 4973, 6677, 7663, 8016, 8869, 9452, 9703, 11432) request that EPA hold polluters financially accountable for the amount of GHG emissions released, st ating that in this day and age everyone has to take responsibility. Commenters provide various suggestions for regulating GHG emissions. Several (0795, 3341, 4109, 7914, 1 1432) express their support for a cap and trade system, while others (3580, 6677, 7663, 8869) object to such a system because they believe it would not lead to real GHG emission reductions. Numerous commenters (0276, 0362, 1018.1, 1117.1, 1118.1, 1157.1, 1158.1, 1185.1, 1189.1, 1539.1, 1919.1, 3580, 3996, 4184, 4846, 6677, 7663, 8869, 9703) support a carbon tax system. Many other commenters (0362, 1018.1, 1117.1, 1118.1, 1157.1, 1158.1, 1185.1, 1189.1, 1539.1, 1919.1, 3580, 3996, 4184, 4843, 8160, 8869) believe that setting a limit on CO 2 emissions and then taxing those who break the limit will encourage companies to reduce their emissions as well as providing more money to the government that could be spent on protecting the environment.

One commenter (3271) suggests that putting more regul ations on inefficient products would encourage people to purchase cleaner ones. Two commenters (3359.1, 3454.1) suggest taking a multi-pollutant approach to the regulation; one commenter in par ticular encourages EPA to regulate ground-level ozone, fine particulates, and mercury. One commenter (3487) states that clean air technology must be made available to every company that wants to cap greenhouse emissions and suggested tax breaks as an incentive to using these technologies. Several comme nters (e.g., 0295, 0845, 3544, 3995, 8151, 10024) stress the importance of considering animal agri culture as a significant source of GHG emissions and suggested regulating this sector as such. Some co mmenters (2266, 7498, 11429) also request that EPA investigate the aviation and maritime industries’ cont ribution to global warming and take additional steps towards regulating their emissions. Some commenters (4814, 11274, 11371) state that population growth or overpopulation are issues that must be addressed to control GHGs.

In addition, some commenters (e.g., 4719, 4843, 4993, 6699, 6833, 7609, 93 27, 10100, 11424) suggest various transportation policies aimed at reduci ng GHG emissions. These include: regulating automotive fuel efficiency; eliminating ethanol from vehicle fuel s; investing in rapid tr ansit; encouraging production of affordable and economical hybrids; providing in centives for individuals who buy hybrid cars; phasing out motor vehicles to transition to electric vehicles; subsidizing alternative technologies; and taxing fuel for gasoline and diesel vehicles.

Numerous commenters (e.g., 3345, 3490.1, 3598.1, 3696.1, 4136, 6901, 6913, 6936, 6937, 7823, 10838,1558, 4136, 4892, 6284, 9509, 9786, 9868, 10156, 10418, 10476, 10510, 4892, 10418) state that coalfired power plants are a major source of global warm ing pollution and suggest a variety of regulatory approaches to phasing out coal-fired electricity ge neration in order to further reduce GHG emissions. Many commenters (8561, 10402, 10476) urge EPA to resist political pressure from the fossil fuel industry and move forward with regulation. Numerous commenters (e.g., 0276, 2040, 3048, 3235_CP, 3692, 3696.1, 4926, 7618, 7646, 8318, 8560, 8918, 9479, 9664, 9896, 10044, 10081, 10152, 10925) suggest various ways to cheaply, effectively, and safel y reduce global warming pollution associated with electricity generation. These include increasing energy efficiency; exploring or switching to renewable or “clean[er]” energy (including wind, solar, biomass, natural gas, nuclear, and geothermal); upgrading the U.S. electricity grid; mandating through federal legisl ation the widespread use of natural gas; supporting

### 30 research in alternative and renewable energy sour ces; and creating a strong regulatory and market-based system that ensures business investment in new tec hnologies. One commenter (4851) objects to the use of nuclear energy as an alternative to fossil fuels, and another commenter (10510) emphasizes sharing renewable technology with developing nations.

Some commenters provide general information relate d to their industry (predominantly stationary sources), as well as information regarding additi onal approaches to address reducing GHG emissions (e.g., energy efficiency, Australia’s “envelope” a pproach). A few commenters (1226.5, 2895, 3494.1, 3548.1) advocate the climate benefits of increased mi leage standards, fuel conservation, recycling,energy-efficient lighting and other energy-efficiency measures, and a full and rapid phase-out of HFC Fgases used in refrigeration and foam blowing.. One commenter (2895) recommends that EPA institute a voluntary incentive program for schools to reduce th eir GHG emissions, while an other (0645) questions

whether GHG reductions can be achieved with cu rrent technology. Two commenters (0244.1, 3341) provide comments on methods for encouraging ne w pollution-control and low-emission technologies, such as outreach on technology strategies, taxes, a nd regulatory incentives. The commenter (0244.1) also provides a discussion of six technologies that he believes should be actively encouraged by EPA, including nuclear ships, solar/wind propelled ships, hydrogen- and battery-propelled boats, electric aircraft (and other non-carbon power plants), automo tive cryogenic heat engines, and electric car grid energy storage. Others (2895, 3501, 4288) criticize the negative climate impacts from the meat industry and the ineffectiveness of and potential public h ealth consequences of carbon capture and sequestration technology. One commenter (9243) asks that EPA consider public education on the issue to be “absolutely required.” One commenter (11264) warns of the law of unintended consequences and requests

that EPA read Playing God in Yellowstone: The Destruction of America’s First National Park (Chase, 1987) for more information before moving forw ard with any action. Another commenter ( 0468) asks if the endangerment and cause or contribut e findings would result in banning carbonated beverages and beer due

to their release of CO 2

.

Several commenters (3372.1, 3747.1, 3764.1) discuss ex tensively what they anticipate to be negative economic and energy security consequences of GHG re gulation under the CAA, including an increased demand for foreign energy imports, particularly liquefied natural gas. Others worry that the reliability of the national electric grid will be imperiled by making it more difficult for coal power plants to operate. Many commenters (e.g., 0459, 1520, 3768, 4309, 9245) indicate that the United States should strive to end its reliance on fossil fuels; some commenters ( 2830, 3027) also conclude that dependence on fossil fuels leaves the United States dependent on foreign im ports, which creates national security and terrorism concerns. One commenter (3372.1) states broadly th at the “true national security issues” are economic and energy security, and that the EPA overlooks these in making the endangerment finding. Another commenter (3747.1) asserts that EPA stated in th e ANPR that it would evaluate energy security implications of potential mitigation actions but did no t do so. Similarly, a commenter (3452.1) states that EPA does not discuss the potential for reduced energy supply that would drive up consumer ’ s energy costs and/or increase foreign imports of energy supplies. Several commenters ( 3372.1 and 3764.1) assert that it is a mistake to believe that foreign sources of ener gy can be reduced without continuing to utilize coal, and note the many uses of coal, including in transportation fuels.

Among those commenters that support EPA’s position, several commenters (3361.1, 3566.1, 3986, 4179, 8665, 10510) feel strongly that this includes a moral obligation by the Agency to regulate GHGs. Commenters cite various reasons, including: 1) glob al warming is “one of the greatest challenges humanity has ever faced” (2263, 3000, 5009, 5020, 50 51), 2) it is necessary for the United States to

establish itself as a world leader in the effort to reduce GHGs (e.g., 0253, 0524, 0718, 3385.1, 3609.2, 3992, 11357,), and 3) it is the duty of the governme nt and EPA to undertake urgent action to protect citizens from the damaging impacts of global warming (4526, 6823, 6835, 10081, 10298, 10641). One commenter (1551), though in support of EPA’s ac tions, expressed disappointment that the proposed

### 31 findings failed to include accompanying regulation. Some commenters (3409, 3428.1, 3492.1) from the business community also stated their belief that taki ng responsibility for their share of GHG pollution is a moral obligation and ask for EPA’s assistance to regulate these pollutants.

Several commenters (e.g., 2151, 3030, 3383.1, 3455.1, 3566.1, 3598.1,3642, 3680.1, 8665, 8704, 3443, 3120) voice their support for EPA’s Proposed Findings due to concern about the welfare of current and future generations due to GHGs. Many commenters (e.g., 0353, 0524, 1663, 2147, 0701, 6835, 3046, 10033, 9347, 9607, 9683, 3421) state that the consequences of doing nothing are too dire to not act and that the longer we wait to do something about GHG em issions, the harder it will be to get the climate stabilized, the greater the negative effects on health an d well-being, and the closer we come to tipping points that will trigger more devastating change.

Response (11-32): This action is under section 202(a) of the Act, and therefore EPA is only considering the emissions from the section 202(a) source category for purposes of making the cause or contribute determination. Emissions from other source categories are not releva nt for determining whether emissions from section 202(a) sources cause or contribute to the air pollution.

Comments about how EPA, or the United States, should or could address GHGs generally are outside the scope of this action, which is about whether emi ssions of well-mixed GHGs from new motor vehicles and

new motor vehicle emissions cause or contribute to ai r pollution that may reasonably be anticipated to endanger public health or welfare. Thus, while EPA reviewed the information provided by commenters on these topics, they are not germane to this ac tion and thus we are not responding to them.

References

Office of the Press Secretary (2009). President Obam a announces national fuel efficiency policy. White House press release. May 19.

Carlin, A. (2009). Proposed NCEE Comments on Draft Technical Support Document for Endangerment Analysis for Greenhouse Gas Emissions under the Clean Air Act.

Chase, Alston (1987). Playing God in Yellowstone: The Destruction of America’s First National Park.

Johnson, S.L. (2008). EPA’s interpre tation of regulations that determ ine pollutants covered by federal Prevention of Significant Deterioration (PSD) permit program. Dec. 18.

Obama, B. (2009). Preemption. Memorandum for the h eads of executive departments and agencies. May

20.

Orszag, P.R. (2009). Clearing the air. http://www.whitehouse.gov/omb/blog/09/05/12/ClearingtheAir/

. Accessed December 5, 2009.

### 32 Appendix A. Summary Comments Receive d Pertaining to Economic Issues

Numerous commenters provided detailed, in-depth discussion and information on various economic issues related to U.S. climate change policy. Such discussion included the positive and negative economic implications of various CAA regul ations, predictions of how regula tion or legislation would impact specific industries, and the economic impact of pr oposed Congressional cap and trade legislation. A summary sampling of these comments is provided below to illustrate the breadth and scope of comments received, but since they are not germane to this action, we are not responding to specific issues raised by

commenters. See Section 11.6 in this volume of th e Response to Comments document for our response to comments on general economic considera tions related to the Final Findings. As described in that section, comments and information regarding the economic implica tions of future regulation or legislation are not directly germane to the specific statutory issues be fore EPA. The issues before EPA concern the impacts of the GHG air pollution on the public health or we lfare and the contribution of GHG emissions from new

motor vehicles.

Summary: Many commenters (e.g., 0400, 0564, 0615, 0650, 2895, 3283.1, 3324.1, 3340, 3548.1, 3682, 4288, 7031, 10893, 11062, 11264) express doubt that the benefits of taking action to combat climate change will outweigh the costs. They argue that the Final Findi ngs and resultant regulation of GHGs will: 1) put the United States at a competitive disadvantage and threaten our ability to maintain world economic dominance (commenter points to the fact that China will build 500 coal-fired power plants in the next decade); 2) cause stagnation of economic growth, negativ ely affect American industry, and cause job loss; 3) force the United States to replace high CO 2 emissions sources such as coal power plants with lowemissions sources at a net cost to society; 4) dive rt attention away from other adverse effects on the environment including deforestation and loss of the world’s rainforests; 5) deny opportunity and a decent standard of living to our childre n and grandchildren; 6) increase costs for necessities and make them prohibitively expensive for some; and 7) increase cost s for recreation, entertainment, vacations, movies, sporting events, etc. and make them into unaffordable luxuries.

Many commenters objected to the endangerment fi nding and future regulation of GHGs because they

believe these actions would hinder the United St ates economy and add unnecessary challenges during the current economic recession. Commenters (4200, 4293.1, 11014, 11021) state that GHG regulation under the CAA would pose a substantial challenge to various sectors of the economy, including fossil-fuel fired electric generating facilities, existing and future oil and natural gas explorati on and productio n operations, the mining industry, the printing industry, agricultural and ranching industries, chemical industry, steel and iron industry, home building industry, and various domestic manufacturing industries.

Several commenters (e.g., 2891.1, 3285.1, 3352.1, 3406.1) express concern that GHG regulation will hinder U.S. businesses’ ability to compete domestical ly and internationally. One commenter (2895) concludes that the patchwork of state and regional regulations that would exist under the CAA would negatively affect the economy due to significant regul atory uncertainty, where manufacturers in different regions of the country would be regulated in differe nt ways based on the political climate of the state where they are located. Other commenters (2898.1, 3012, 3218.1, 3297.1) state that setting GHG emission standards for new motor vehicles would likely restrict consumer freedom to choose the types of vehicles they want to drive and would interfere with their way of life.

One commenter (0509) argues that the vast majority of physical human suffering on this planet and in this country can be addressed by improved education, im proved infrastructure, increased trade, and economic growth, and that CO 2 emission restrictions will increase the co sts and severely hinder these truly needed developments. Another commenter (0442) states th at EPA’s actions will cause greater problems for society given that 1) alternative ve hicles (hybrid and electric cars) are more costly than and not as reliable

### 33 as conventional cars; and 2) renewable energy is more costly and not as reliable as fossil fuels or nuclear power. Some commenters conclude that EPA’s regulat ory actions will harm public health and welfare. One commenter (10850) cites Lutter et al. (1999), who state that every additional $15 million in regulatory costs ($19.25 million in 20 09 dollars) leads to an additional statistical death because regulatory costs impose costs on society that reduce income and, in turn, reduce expenditures on health and safety.

Several commenters (e.g., 0657, 2 895, 4032, 8624) argue that congr essional cap and trade legislation would be disastrous for the U.S. economy, partic ularly for poor and middle-income Americans. A

commenter states that the bill’s mandate to cut CO 2 emissions by five-sixths by 2050 threatens shutdown of five-sixths of today’s U.S. economy, which would in effect allow electricity and automobile use for just one day per week. One commenter asks how much the legislation currently being contemplated by the U.S. Congress will cost, while another expresses c oncern about high-risk trading in climate change control instruments. Another commenter (8624) request s information on what negative impacts, if any, implementing the Kyoto Protocol has had on the part icipating countries. The commenter expresses doubt about the capability of countries to meet emission target s that are much more stringent than those in the Kyoto Protocol.

Many commenters (e.g., 0168, 0295, 0405, 3341, 4680, 6154, 6596, 7392, 7600, 10662) supported the use of the CAA to regulate GHG emissions. Several of these commenters (6154, 6596, 7600) contendedthat the CAA provides critically important tools for reducing GHG emissions successfully and costeffectively. These commenters (6154, 6596, 7600) pointed out that this law has a four-decade track record of success in protecting the air we breathe and provi des the foundation for a shift to a low-carbon, cleanenergy future and urged EPA to finalize the enda ngerment finding and issue regulations to reduce GHG emissions immediately.

Some commenters (3901, 4695, 9822) suggested that EPA should not worry about the industries impacted by this regulation because they will manage and even be able to create new jobs related to clean energy technologies, with an opportunity to unleash the full force of American ingenuity. On the other hand, one commenter (0244.1) warned EPA not to continue w ith a focus on enforcement because this approach would not stimulate and encourage the invention of new technologies. Several commenters (e.g., 0353, 1318.1, 11431) expressed concern with the economic impa cts of the rule but felt that it was better to proceed, rather than face more dire economic con sequences from the effects of climate change. Two commenters (9674, 9545) stated that the protection and improvement of air quality is more important than the profit margins of industries. Several commenters (0675, 0199, 9398) felt that while some might complain about the short-term economic impacts of limiting carbon emissions, current mitigation would be cheaper than future adaptation measures. One comment er stated that although companies currently find it more profitable to use obsolete plants rather than replace them with more efficient facilities, new regulation utilizing carbon credits would help compensat e them for the stricter regulations required of new power-generating plants.

One commenter (3445) noted that citizens may wonder if the cost of regulation would lead to higher taxes, while another (3444) noted that the government has found money for things less important than this issue. Another (3621) noted that if the market were structured to prevent exploitation of resources, then the market and economy would flourish in a sustainable manner. Some commenters (e.g., 6673) noted that the country can implement solutions for this pollution problem without a major economic sacrifice, including one commenter (9313) who gave an example of the regulation of sulfur dioxide emissions in the 1990s as something that people feared would damage the economy but that turned out to be a successful regulatory policy.

Many commenters (e.g., 4912, 7609, 9492) believe th at policies implemented to fix climate change can “help us rebuild our economy,” including more than one commenter (e.g., 9492, 9558, 7609) who

### 34 preferred to move to renewable, clean energy, sta ting (9492) that do so would create well-paying jobs, enhance competition with foreign companies, and le ssen our dependence on imported oil. A commenter (2726) in Michigan noted that U.S. policy that leads to investment in clean, alternative energy technology would benefit the economy in Michigan by creating jobs for the manufacturing base. Another commenter (10097) agreed that developing clean energy sources w ill lead to job creation, and that 3,000 such jobs have already been created in Pennsylvania. A thir d commenter (10335) agreed that EPA’s planned course of action will lead to job creation—firs t in research, then in construction.

Furthermore, commenters (e.g., 1318.1, 2038, 2151) st ate that the resulting deployment of a new and efficient renewable energy infrastructure would benefit the struggling economy; the building and development of modern alternative energy sources would create and maintain jobs, as well as create competition with international markets where green technologies are already prevalent. One business (3428.1) commented that it recognizes that, in order to encourage the innovation needed to stimulate the economy and direct America toward a low-carbon, energy-secure future and decarbonize the economy, a significant price on carbon must be correctly applied. One commenter (10374) noted that a sustainable energy future is key to future economic stability. Anot her commenter (6893) stated, “In truth, if we fail to act, the damage to our future economy will far outwe igh any short-term conseq uences due to emissions limitation” and requested that EPA take strong acti on. Another commenter (8877) suggested that funding public transportation and green build ings would require less money for road building. In contrast, two commenters (0657, 8624) express doubt about the ability of climate legislation or regulation to create “green jobs” and stimulate the economy, stating that it is a “myth to think that the jobs created in the ‘green’ sector will make up for the jobs lost in the coal and petroleum industries.”

Commenters (e.g., 10408, 10412, 10486, 10587, 10589, 10590, 10608, 10612, 10674) who support the Waxman-Markey Bill noted that we have a historic opportunity to cap global warming pollution and put people back to work unleashing Am erica’s green energy economy. These commenters predicted that this bill will invest in America, create jobs, curb our gl obal warming emissions, and free us from foreign oil. However, many commenters (e.g., 468 0, 7392, 9848, 1066 2) expressed concerns that the bill is not as stringent as it should be.

Reference

Lutter, R., J.F. Morrel, and W.K. Viscusi (1999). Th e cost-per-life saved: Cutoff for safety-enhancing regulations. Economic Inquiry 3:599-608.