COMMENTS on PROPOSED 

ENDANGERMENT AND CAUSE OR CONTRIBUTE 

FINDINGS FOR GREENHOUSE GASES (GHGs) 

Under Section 202(a) of the Clean Air Act

(Docket Number OAR-2009-0171) 

By the National Association of Manufacturers 

Submitted to the Environmental Protection Agency on 

June 23, 2009 
June 23, 2009 

Via electronic filing and U.S. Mail 

Environmental Protection Agency 

EPA Docket Center (EPA/DC) 

Mailcode:6102T 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

Re: Docket I.D. No. EPA-HQ-OAR-2009-0171: Proposed Endangerment Finding for GHG 

Regulation under the Clean Air Act (CAA) 

Dear Sir or Madam: 

The National Association of Manufacturers (NAM) submits these comments in response to the 

Environmental Protection Agency’s (EPA) proposed endangerment determination for greenhouse gases 

(GHGs) under section 202(a) of the Clean Air Act (CAA), 74 Fed. Reg. 18886 (Apr. 24, 2009). The 

NAM is the nation’s largest industrial trade association representing small and large manufacturers in 

every industrial sector and in all 50 states. The NAM is the nation’s leading voice for the manufacturing 

economy, a sector that employs more than 12,700,000 Americans and generates $1.6 trillion in Gross 

Domestic Product (GDP). Any expansion of EPA’s authority under the CAA, especially one as farsweeping as that discussed in EPA’s proposed endangerment finding under the CAA for GHG emissions 

(“endangerment finding”), will have a direct impact on the entire manufacturing sector. 

The NAM’s mission is to enhance the competitiveness of manufacturers and improve American 

living standards by shaping a legislative and regulatory environment conducive to U.S. economic growth. 

As a general matter, the NAM supports EPA regulations that are designed to provide net benefits to 

environmental quality and the public health, including the health of manufacturing workers and their 

families. Conversely, NAM opposes regulations that would impose overly burdensome compliance costs 

on the manufacturing sector, especially those with no clear goal for achieving improved environmental 

quality. 

Applying these principles here means that NAM must oppose EPA’s proposed endangerment 

determination. An endangerment determination by EPA is not simply an observation by the agency about 

climate change nor is it simply a straightforward recitation of scientific data. Rather, it is a policy 

determination, which must be based on a solid factual record, and which, once made, will have profound 

consequences for American workers and businesses. A positive endangerment determination would 

trigger an unprecedented expansion of the EPA’s regulatory authority over the American economy 

because it would allow – and in some cases require – EPA to regulate domestic emissions of carbon 

dioxide and other GHGs. Regulated entities would include thousands of stationary sources and millions 

of motor vehicles. Such action will provide no net benefits to environmental quality, but will result in 

serious risks to our nation’s short-term economic recovery and long-term international competitiveness. 

EPA regulation of GHGs as air pollutants under the Clean Air Act would even hinder the manufacturing 

sector’s ability to deploy the advanced technologies which will be necessary to deal effectively with the 

challenges posed by GHG emissions, therefore undermining the objectives of any rational federal climate 

policy. 
I. EPA SHOULD NOT MAKE A POSITIVE ENDANGERMENT DETERMINATION 

BECAUSE IT WOULD REQUIRE EPA TO UNDERTAKE A MASSIVE GHG 

REGULATORY PROGRAM THAT WOULD HAVE ENORMOUS NEGATIVE 

ECONOMIC IMPACTS ON AMERICAN BUSINESSES AND CONSUMERS. 

If EPA makes a positive endangerment determination for GHGs under section 202(a) of the Clean 

Air Act, it will be required to regulate GHG emissions from motor vehicles and ultimately from stationary 

sources as well. As described below, regulation of GHGs under the CAA would lead to huge adverse 

economic consequences that the drafters of the Clean Air Act never could have intended or anticipated. It 

would also undermine the Administration’s efforts to jump-start the struggling economy through 

enactment of the historic American Recovery and Reinvestment Act of 2009. Several key provisions of 

this very important legislation promote installation of energy efficient technologies. The 

Administration’s efforts to accomplish the dual goals of growing jobs while achieving energy security, 

however, would be stymied by triggering far-reaching New Source Review (NSR) permitting 

requirements, which as discussed in more detail in part III and IV, would result from a positive 

endangerment determination. 

EPA acknowledges that the determination it must make under section 202(a) of the Clean Air Act 

is a policy choice. EPA’s proposed determination quotes from the opinion of the U.S. Court of Appeals 

for the D.C. Circuit in Ethyl Corp. v. EPA, in which the court stated that EPA must “act, in part on 

‘factual issues,’ but largely ‘on choices of policy, on an assessment of risks, [and] on predictions dealing 

with matters on the frontiers of scientific knowledge.” 74 Fed. Reg. at 18891. The Supreme Court has 

not overruled this aspect of the Ethyl Corp. case, nor does EPA assert that it has. 

As a result, it is anomalous that in the proposed determination, EPA evaluates the relevant policy 

choice by looking at some consequences of a determination under 202(a) of the Clean Air Act, but not 

others. It looks at the possible negative consequences of not making a positive endangerment 

determination, but ignores the unavoidable adverse consequences of actually making that positive 

determination. Indeed, EPA states that the endangerment determination imposes no requirements, and 

therefore does not have an impact on small entities, nor is it a “significant energy action” that would 

adversely affect the supply, distribution or use of energy. 

Instead of looking at the CAA and the section 202(a) determination solely from a single vantage 

point–that is, from the perspective of the possible benefits of controlling greenhouse gas emissions while 

ignoring the negative consequences under the pretext that no actual regulatory controls are being 

proposed here—EPA should be transparent about what is actually at stake in making this determination 

and should 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). Without first addressing these 

many and obvious implications of its regulatory actions, EPA’s final endangerment finding would be 

arbitrary. See Competitive Enterprise Inst. v NHTSA, 956 F.2d 321, 326-28 (D.C. Cr. 1992) (remanding 

CAFE standards because the agency failed to address safety effects of higher fuel economy standard). 

As demonstrated in part V below, EPA’s endangerment finding, if justified at all, is solely 

justified in terms of the effect of GHGs on national welfare, not public health. But the welfare of the 

nation’s economy is a critical component of the public welfare, and ultimately the nation’s health. See

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 . . . regulation reduces incomes and thus may exact a cost in human 

lives”). EPA is proposing to make a finding that will inevitably cripple the economy, see Parts III and IV, 

below, without even bothering to address this concern. In effect, EPA is threatening disastrous 

regulations to motivate Congress to pass greenhouse gas regulation. In this scenario the endangerment 

2
finding is EPA’s way of tying its hands so that Congress knows that EPA will not change course and that 

Congress must act swiftly to avoid disaster. 

The NAM argues that a fair evaluation of those impacts will lead to the conclusion that a positive 

endangerment determination for GHGs under section 202(a) is the wrong policy for dealing with global 

climate change and GHG emissions. Rather, the Administration should support a forward-thinking 

climate strategy that will: 

• Remove market barriers to cost-effective reductions 

• Protect American jobs and consumers; 

• Mirror comparable commitments by our global trading partners and competitors; 

• Be based on the best science available that meets Information Quality Act Requirements; 

• Meet cost-effective and cost-benefit tests; and 

• Apply equally throughout the U.S. economy. 

Furthermore, NAM supports a comprehensive federal climate policy that will inflict no economic harm, 

provide a viable domestic energy supply and preempt a patchwork of state and regional schemes to 

control emissions of GHGs. Implementing such a policy requires new policies, rather than a misguided 

expansion of a statute which was enacted more than 30 years ago to address pollutants that have qualities 

completely different from GHGs and continues to be the source of significant litigation and regulatory 

uncertainty. 

A. The Economic Consequences of GHG Controls Must Be Fully Assessed and Evaluated 

Before EPA Makes an Endangerment Determination. 

 

Because the Supreme Court’s decision in Massachusetts v. EPA recognized that EPA has wide 

latitude to determine the timing and nature of any GHG regulations, EPA should not make an 

endangerment determination until it has adequately examined the policy implications of using the CAA as 

a means of regulating GHGs. Indeed, NAM believes that it be would arbitrary and capricious for EPA to 

make the section 202(a) policy determination after evaluating only one set of policy considerations and 

consequences while brushing off or ignoring altogether others, including many of the known or 

reasonably foreseeable negative consequences of such a determination. These negative consequences are 

obvious and massive. 

The health and competitiveness of our nation’s core manufacturing economy is dependent on 

energy prices. An endangerment finding would necessarily raise those prices, especially for natural gas, 

which would have a disproportionate impact on the manufacturing sector. Higher natural gas prices 

translate into job losses for the manufacturing sector, which uses the commodity as a source to generate 

electricity and as a feedstock to produce pharmaceuticals, plastics, and fertilizer, among other products. 

The erosion of the domestic production of ammonia, which is used as a fertilizer and building block for 

other industrial products, illustrates the challenges of higher natural gas prices. Since the price for natural 

gas began to climb in 2000, the domestic production of ammonia has declined by more than 40%. From 

2000, when natural gas prices began to climb up until the onset of the current financial crisis during the 

first quarter of 2008, the manufacturing sector shed more than 3.7 million high paying jobs. And since 

the onset of the current recession, the United States has lost approximately 1.7 million high wage 

manufacturing jobs, imposing enormous burdens and uncertainty on American workers and their families, 

(U.S. Census Bureau and Bureau of Labor Statistics). 

An endangerment finding would force more industries would be forced to switch to natural gas to 

meet the GHG regulations that the finding makes inevitable, because natural gas is approximately half as 

3
carbon-intense as coal. See http://www.osha.gov/SLTC/powergeneration/federal_agencies.html. The 

Administration claims to be working to bring the nation out of this recession, particularly through 

enactment of the American Recovery and Reinvestment Act of 2009. Yet an endangerment finding 

would inexorably lead to regulation under the CAA that would drastically increase energy prices, 

particularly the price of natural gas. 

Recent events in California illustrate the consequences of the kind of GHG regulations that would 

automatically result from an endangerment finding. A study from the California Public Utilities 

Commission, assessing a 2020 target renewable energy portfolio standard, states that “reaching a 33 

percent target will require procurement of more expensive renewables.” The study goes on to state that 

“preliminary analysis indicates that such a target may require a state investment of about $60 billion in 

generation and transmission from 2010 to 2020.” Not only will deployment of low carbon technology be 

more expensive, but pre-mature deployment also reduces the quality and reliability of power delivered on 

a regional grid. 

A recently disclosed memorandum from the White House Office of Management and Budget 

(OMB) states that regulating “CO2 under the CAA for the first time is likely to have serious economic 

consequences for regulated entities throughout the U.S. economy, including small businesses and small 

communities.” The OMB goes on to state that in the event EPA “extends this finding to stationary 

sources, small businesses and institutions would be subject to costly regulatory programs such as New 

Source Review (NSR).” The OMB memorandum also criticizes the agency’s lack of cost-benefit analysis 

and points out that the proposal could “be strengthened by including additional information on benefits, 

costs and risks.” The document further states that “some issues” that EPA should cover include “impacts 

of climate change on the value of net economic benefits.” OMB goes on to state that “an endangerment 

finding under Section 202 [of the Clean Air Act] may not be the most appropriate approach for regulating 

GHGs.” NAM realizes that Administration officials have denied that the memorandum reflects 

Administration policy—but regardless of whether it reflects Administration policy, EPA must address 

these arguments. NAM largely agrees with these comments in the OMB memorandum; if EPA does not, 

it must demonstrate why those arguments are wrong. 

EPA is well aware that an endangerment finding will tie its hands, mandating GHG regulations 

that, as explained in Part III of these comments, will cripple an already-distressed economy. Yet EPA 

does not even consider the consequences of its decision. This is arbitrary and capricious. 

B. Leakage of GHG Emission Means That Unilateral, Domestic Regulation Will Simply 

Push GHG Emissions Overseas, With No Environmental Benefit 

A dramatic expansion of clean air programs could actually result in increased global GHG 

emissions by forcing many energy-intensive industries, such as steel, paper, chemicals, glass and cement, 

to shift operations to countries that have no mechanism for regulating carbon, or which use energy less 

efficiently. For example, manufacturing in China uses six times as much energy to produce $10,000 of 

GDP. Furthermore, EPA’s own analysis using the MiniCAM model shows that the rise in emissions in 

the rest of the world would more than offset any possible reductions in the U.S. (Edmonds, Clark, Luiz 

and Wise, “Stabilizing CO2 Concentrations With Incomplete International Participation,” stating that 

stabilizing CO2 concentrations becomes “infeasible” with delayed participation of non-Annex I 

countries). Similarly, the various permitting programs that could be triggered by an expansion of 

regulatory authority would merely mandate emissions limits on specific sources, with no likelihood of 

reducing GHG concentrations in the environment in the United States or around the world. 

4
EPA should not make a positive endangerment determination at this time because, in the context 

of greenhouse gases and emissions from new motor vehicles, EPA has not examined, explained or 

justified how this determination and the resulting regulatory consequences will improve air quality or be 

consistent with the structure or purposes of the Clean Air Act. GHG emissions are a global challenge that 

cannot be solved by any one nation acting unilaterally pursuant to a statute designed to address local 

environmental quality. The CAA’s permitting programs have historically focused on local emissions of 

criteria pollutants while not accounting for emissions from other countries. 

 Finally, unlike any likely congressional solution, CAA regulation would not necessarily preempt 

state and regional climate change programs. The patchwork of state and regional regulations that would 

result would create more investment uncertainty and undermine regulatory effectiveness. Under this 

unfortunate scenario, manufacturers in different regions of the United States would be regulated in 

different ways not because their emissions or effects of their emissions are any different, but merely 

because of the policies of the state where they are located. Thus, the expansion of CAA programs that 

would follow from an endangerment finding would impose significant additional burdens on our 

struggling economy with no measurable environmental outcomes. 

 

 

II. EPA HAS BROAD DISCRETION REGARDING WHETHER AND WHEN TO MAKE AN 

ENDANGERMENT FINDING. 

The current economic situation and the uncertain costs and benefits of GHG regulation require 

EPA to exercise extreme caution with respect to the endangerment determination. EPA has broad 

discretion to exercise such caution. Nothing in the Clean Air Act or the Supreme Court’s decision in 

Massachusetts v. EPA, 549 U.S. 497 (2007), compels EPA to rush to judgment on this complex issue. To 

the contrary, Massachusetts acknowledged that EPA “has significant latitude as to the manner, timing, 

content, and coordination of its regulations with those of other agencies.” 549 U.S. at 533. Moreover, 

EPA should refrain from acting while Congress considers legislation to address GHG emissions and the 

United States enters international negotiations in the Copenhagen Climate Change Conference. 

A. The Massachusetts Decision Acknowledged EPA’s Discretion Over the Timing and 

Nature of an Endangerment Determination 

 The Clean Air Act vests EPA with substantial discretion regarding the timing and nature of any 

endangerment finding. In Massachusetts, the Supreme Court affirmed that discretion. 549 U.S. at 534-35 

(“We need not and do not reach the question whether on remand EPA must make an endangerment 

finding or whether policy concerns can inform EPA’s actions in the event that it makes such a finding.”). 

Thus, despite claims by environmental groups, no court is pressuring EPA to act immediately. 

 

 To the contrary, the D.C. Circuit has rejected efforts to force EPA to make an endangerment 

determination. See Petition for Writ of Mandamus to Compel Compliance With Mandate, Massachusetts 

v. EPA, Dkt. No. 03-1361 (D.C. Cir. Order of June 26, 2008). In a concurring opinion, Judge Tatel 

observed that “nothing in section 202, the Supreme Court’s decision in Massachusetts v. EPA, or our 

remand order imposes a specific deadline by which EPA must determine whether a particular air pollutant 

poses a threat to public health or welfare.” Id. at 2. As recognized in the opinion, the court has “often 

allowed delays significantly beyond a year, especially where, as here, the issue facing the agency was 

both complicated and controversial.” Id. 

 Similarly, the Northern District of California also rejected a petition for mandamus seeking 

compliance with the Supreme Court’s mandate. S.F. Chapter of A. Philip Randolph Inst. v. EPA, 2008 

No. C 07-4836 CRB U.S. Dist. LEXIS 27794 at *10-11 (N.D. Cal. Mar. 28, 2008). Consistent with the 

5
D.C. Circuit’s conclusion, the California court recognized that “[t]he Supreme Court was careful not to 

place a time limit on EPA, and indeed did not even reach the question whether an endangerment finding 

had to be made at all. The notion that this Court would fill the void by ordering EPA, by writ of 

mandamus, to immediately respond to the Supreme Court’s decision is so far afield from notions of 

comity and propriety that it need not be seriously considered.” 

 Courts generally apply a “rule of reason” in assessing delay in agency decision-making. 

Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984). Courts consider the “effect 

of expediting delayed action on agency activities of a higher or competing priority,” the “nature and 

extent of the interests prejudiced by delay” and the potential for impropriety in the agency’s inaction. Id. 

The complexity of environmental regulation also justifies lengthy agency deliberation. See Sierra Club v. 

Thomas, 828 F.2d 783, 799 (D.C. Cir. 1987) (“Given the complexity of the issues facing EPA and the 

highly controversial nature of the proposal, agency deliberation for less than three years – little more than 

one year since the close of the public comment period – can hardly be considered unreasonable”). 

 EPA should not succumb unnecessarily to pressure from certain groups arguing for expedited 

action. The issuance of an endangerment finding would reverberate throughout the CAA, potentially 

impacting all new mobile source engines, fuels for existing mobile sources and stationary sources 

currently regulated under its provisions and potentially millions of other newly regulated sources. While 

undoubtedly certain groups will continue to pressure EPA and the courts to issue an endangerment 

finding, such efforts must be balanced against the impact on the regulated community and the Agency’s 

preparedness for the ramifications of such regulations. In this instance, blindly issuing an endangerment 

finding would trigger onerous and poorly understood regulatory obligations, overwhelm EPA and state 

environmental agencies, and fundamentally alter the nation’s manufacturing sector and economy. 

The regulation of GHGs under the CAA would be the most ambitious and pervasive action that 

the Agency has ever contemplated – far more so than eliminating lead from gasoline or requiring catalytic 

converters for mobile sources. Nothing requires quick decision-making, and there are compelling reasons 

to defer an endangerment determination at this time. 

B. EPA Should Defer Any Endangerment Determination Because Action by Political Actors 

Better Suited to Implement A Comprehensive Federal Climate Policy 

 Obtaining some direction from Congress, the international community, and stakeholders is 

essential given the lack of any intelligible principles within the CAA on how GHG emissions should be 

controlled. EPA’s proposals could cripple the economy, swamp state and local agencies with unfunded 

mandates to administer permitting programs in ways never before imagined, and position the Agency to 

regulate activities outside of its traditional areas of expertise. Rather than rush ahead, EPA should follow 

the lead of those politically accountable actors. 

 

 Courts have also recognized that regulating GHGs is best left to elected officials. Environmental 

groups, state Attorneys General and others filed lawsuits seeking damages and injunctions under tort law 

to curtail GHG emissions. However, every reviewing court has rejected such attempts as a political 

question. See Connecticut v. Amer. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005); California v. 

Gen. Motors Corp., No. C06-05755 MJJ,2007 WL 2726871 (N.D. Cal. Sept. 17, 2007); Comer v. 

Nationwide Mut. Ins., 2006 WL 1066645 (S.D. Miss. 2006). In noting that “the elected branches must 

make an initial policy determination on global warming” before the courts can act, the General Motors

court cited EPA’s own assessment of climate change regulation: “It is hard to imagine any issue in the 

environmental area having greater ‘economic and political significance ... [climate change] has been 

discussed extensively during the [past] Presidential campaigns; it is the subject of debate and negotiation 

in several international bodies; and numerous bills have been introduced in Congress over the last 15 

6
years to address the issue.’” 2007 WL 2726871 at *8 (quoting 68 Fed. Reg. 52922, 52928 (Sept. 8, 2003) 

(second alteration in original)). 

 No one—not environmental groups, the courts, or EPA—claims (or could claim) that Congress 

intended for the CAA to govern GHG emission reductions. Thus, Congress has provided no guide for 

how EPA should weigh the multitude of competing values in deploying the CAA to combat climate 

change—a mission for which it was never designed. The Agency should proceed cautiously and 

deliberately in complying with the Supreme Court’s direction in Massachusetts v. EPA, taking advantage 

of the discretion the Court affirmed regarding the timing of such a decision, and conducting a more 

thorough analysis of the costs and benefits of further CAA regulation. 

 Any immediate, unilateral action by EPA would be imprudent also because the United States is 

working towards international action on GHG emissions. As a party to the UN Framework Convention 

on Climate Change (UNFCCC), the United States will participate in the December 2009 Climate Change 

Conference in Copenhagen. Member nations will be negotiating a potential successor agreement to the 

Kyoto Protocol and could propose new international commitments to reduce GHG emissions. Given that 

GHGs pose international problems, EPA should wait and allow the United States’ negotiators to pursue 

an international solution. 

 Some have argued that the upcoming Copenhagen discussions actually provide impetus for EPA 

to press ahead with the endangerment finding. That is incorrect. A free-standing endangerment 

determination would preempt the Copenhagen discussions. Moreover, even if a freestanding 

endangerment finding were permissible, it could trigger mandatory regulations under the CAA, as 

explained below. As such, an endangerment finding would commit the United States to regulating GHGs 

through the CAA, again short-cutting the Copenhagen discussions which will undoubtedly encompass 

other means of addressing GHG emissions. This does not mean that the United States is a “skeptic of 

climate change.” Rather, deferring any endangerment determination would engage the U.S. in an 

international dialogue and provide U.S. negotiators with the greatest freedom in discussions to craft 

innovative solutions. 

 C. EPA Should Carefully Assess the Health and Welfare Effects of CAA GHG Controls. 

 EPA should take the time to perform a more thorough analysis of not only the costs of regulation, 

but also the benefits of regulation, as well as the risks to public health and welfare that would be caused 

by imposing GHG controls, or failing to impose such controls. EPA has not yet had time to perform this 

careful analysis, as the proposed endangerment finding makes clear. 

 The most basic problem with the endangerment finding is that it is based on data that fails to 

support, and often contradicts, its reasoning. For instance, the paragraph below is central to the 

Administrator’s argument on health effects, and typical of its reasoning: 

The Administrator also acknowledges that warming temperatures may 

bring about some health benefits. Both extremely cold days and 

extremely hot days are dangerous to human health. But at least in the 

short run, modest temperature increases may produce health benefits in 

the U.S. (and elsewhere). Although the IPCC projects reduced human 

mortality from cold exposure through 2100, it is currently difficult to 

ascertain the balance between increased heat-related mortality and 

decreased cold-related mortality. With respect to health, different 

regions will be affected in different ways. The Administrator does not 

believe that it is now possible to quantify the various effects. Because 

7
the risks from unusually hot days and nights, and from heat waves, are 

very serious, it is reasonable to find on balance that these risks support a 

finding that public health is endangered even if it is also possible that 

modest temperature increases will have some beneficial health effects. 

74 Fed. Reg. at 18901. Thus, on the basis of evidence that shows a decrease in mortality from warming 

temperatures, EPA concludes that “on balance” warming temperatures endanger public health. This is not 

rational decisionmaking. It would be fair for EPA to examine the evidence that warming improves public 

health and conclude that the data was not clear enough to have confidence in that conclusion. Indeed, it 

would be better if EPA acknowledged existing gaps in available date in drawing conclusions from the 

limited data on climate change. But it is not rational to say that evidence of health benefits plus 

uncertainty makes it reasonable to conclude that health is endangered. If it was, regulatory ignorance 

would always be an excuse for regulation. 

 In fact, EPA knows that the evidence of health benefits from warming is stronger than its 

proposed endangerment finding has acknowledged. EPA’s Technical Support Document (TSD) notes 

that cold caused 16,555 deaths from 1979 to 2002, while heat caused only 4,780 deaths. TSD at 70. And 

EPA’s Draft Technical Support Document noted that a majority of studies show that warming saves more 

lives from excessive cold then it costs from excessive heat. Draft TSD, Docket No. EPA-HQ-OAR-2008-

0318, Doc. ID EPA Docket No. EPA-HQ-OAR-2008-0318-0082 at 66 (June 21, 2008). EPA’s argument 

that incomplete data means endangerment rings hollow when it buries data contradicting its finding. 

 Similarly, throughout its proposed finding, EPA repeatedly ignores other issues that are crucial to 

determining whether the public health of our nation’s citizens is, in fact, endangered. For instance, EPA 

explicitly refuses to consider how communities will adapt to a warmer earth. 74 Fed. Reg. at 18,894. 

Adaptation is a ubiquitous response to any change in the climate. EPA’s failure to consider adaptation 

makes its proposed endangerment finding a hypothetical, or a parlor game, not a reasoned conclusion 

about the effects of GHG emissions on public health and welfare. 

 This is not to say that, given more time, EPA could not propose a convincing and well-reasoned 

endangerment finding. It is just that EPA has not currently done so. In some circumstances, it might be 

appropriate to rush a finding, even in the face of uncertainty. But given the imminent prospect of 

international and legislative approaches to a federal climate policy, there is no need to make a hasty and 

poorly reasoned endangerment finding on the basis of an incomplete record, particularly because those 

approaches will not have to force the square peg of GHG emissions into the round hole of the CAA. 

III. EPA MUST CONSIDER AND ASSESS AN ENDANGERMENT FINDING’S 

POTENTIAL TO TRIGGER MANDATORY REGULATION OF GHGs UNDER 

MULTIPLE EPA PROGRAMS 

As explained above, EPA is obligated, both as a legal matter and as a matter of sound 

policymaking, to consider all of the consequences of the proposed endangerment determination, not just 

the consequences of making no endangerment finding. Cf. Competitive Enterprise Inst., 956 F.2d at 326-

28. Yet, EPA has utterly ignored the consequences a positive endangerment finding under Section 202 

would have under the rest of the Act. EPA’s silence on this matter is all the more erroneous in light of the 

ANPR’s extensive discussion of these consequences. Further, many of the public comments submitted in 

response to the ANPR bear directly on the effects on an endangerment finding, and yet EPA has here 

proposed that finding without responding to the comments. NAM again submits comments on the farreaching effects of EPA’s proposal and contends that EPA must take into account all of its implications. 

8
Although the current proposal focuses on mobile source emissions under Section 202 of the 

CAA, an endangerment finding under one section of the statute will have a domino effect throughout the 

act. For example, once the Administrator makes an endangerment finding under the CAA, issuance of a 

National Ambient Air Quality Standard (NAAQS) for that air pollutant is not discretionary. EPA 

suggests that it could issue an endangerment finding for GHGs under CAA § 202 but not promulgate a 

GHG NAAQS under Title I. 73 Fed. Reg. at 44497. All the Agency would have to do, it reasons, would 

be to abstain from setting air quality criteria under CAA § 108. 73 Fed. Reg. at 44478. EPA already 

attempted this maneuver to avoid promulgating a NAAQS for lead, and failed. The D.C. Circuit, in 

NRDC v. Train, 545 F.2d 320 (D.C. Cir. 1976), held that this strategy would render “the mandatory 

language of § 108(a)(1)(A) ... mere surplusage,” allowing the Administrator to avoid the mandatory 

deadlines in CAA §§ 108(a)(2), 109 and 110. 

 EPA cannot ignore the CAA’s plain statutory commands. In last year’s ANPR, EPA discussed 

raising the major source cutoffs to “establish a significance level for GHGs at a level high enough to 

assure that the program applies to larger sources and modifications, but excludes smaller sources and 

modifications.” 73 Fed. Reg. at 44505. This would involve setting major source thresholds above those 

found in the CAA, suggesting a range between 10,000 metric tons and 100,000 metric tons. Id. As an 

alternative, the Agency also considered a “phase-in” approach, where only the largest sources would 

receive NSR permits at first with all other sources emitting more than 250 TPY being required to file for 

NSR permits at an undetermined later date. Id. at 44507. As EPA acknowledges, however, the Clean Air 

Act sets major source thresholds at 100 TPY for listed source categories and 250 TPY for all other 

sources. See 73 Fed. Reg. at 44506 (discussing definition of major source under 42 U.S.C. § 7479(1)). 

As a second short-cut, EPA is also proposing to jettison the statutory requirement that every permit 

applicant be subject to a case-by-case BACT analysis in favor of a “presumptive BACT” approach that 

would forego individual considerations of feasibility, cost, energy usage or collateral environmental 

impacts. 73 Fed. Reg. at 44508. The Agency suggests that it can ignore the CAA’s concededly plain 

language in favor of a legislative intent not to regulate smaller sources. 

 EPA’s proposed legal argument has high legal risks and could well be rejected by a reviewing 

court. Indeed, convincing a court to ignore the plain language of a statute is an incredibly rare 

occurrence. The Agency cites to Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1980), as 

supporting its theory that courts will, on extreme occasions, ignore a statute’s language in favor of 

Congressional intent, as expressed by an administrative agency. The actual holding of Alabama Power, if 

anything, contravenes EPA’s proposed interpretation as the court rejected EPA’s interpretation of 

“potential to emit” in favor of “the language and comprehensive scheme of the statute ....” 636 F.2d at 

354. Specifically, it rejected EPA’s attempt to “creat[e] a broad exemption for smaller sources,” holding 

that “the Act does not give the agency a free hand authority to grant broad exemptions.” Id. The court 

also provides EPA with nothing to support its de minimis emitter theory, discussed on 73 Fed. Reg. at 

44507. NAM does not disagree with the policy that EPA appears interested in pursuing with respect to 

exempting smaller sources from the consequences of EPA’s decisionmaking, but there is serious doubt 

about the legal viability of EPA’s approach. Neither EPA nor anyone else should fool themselves about 

the likely consequences of a positive endangerment determination by hoping that EPA will find a way to 

exclude smaller sources from regulatory overreach. 

 It should be noted that olive branches extended by two of the major environmental groups does 

not make an unlawful reading of the CAA defensible. In their testimony before Congress last year, 

representatives from the Natural Resources Defense Council (“NRDC”) and the Sierra Club both agreed 

that they were not interested in compelling regulation of sources emitting less than 5,000 or 10,000 tons 

per year of carbon dioxide. See Testimony of David Bookbinder, Chief Climate Counsel, Sierra Club, 

Before the Senate Comm. on Environ. and Public Works at 7 (Sept. 23, 2008) (“EPA should state that it 

has no intent of requiring [PSD] permits for sources emitting less than 5,000-10,000 [TPY] of CO2. No 

9
one – not industry, not the environmental community, not EPA, not the state air agencies – believes that 

those sources should be regulated.”); Testimony of David D. Doniger, Policy Dir., Climate Center, 

NRDC, Before the House Comm. on Energy and Commerce Subcommittee on Energy and Air Quality at 

19-20 (Apr. 10, 2008) (“NRDC is prepared to work with EPA to evaluate proposed solutions to the issue 

of smaller source coverage” so long as “indisputably major sources of CO2, such as new coal-fired power 

plants” are regulated under NSR). In effect, the representatives for the NRDC and Sierra Club argue that, 

if EPA agrees to ignore the language of the CAA, then no one will sue for its enforcement. Messrs. 

Bookbinder and Doniger offer a promise that neither party can guarantee. Many organizations are active 

in suing to stop manufacturing construction, including State Attorneys General, smaller environmental 

activists and local “NIMBY” groups opposed to development. There will be challenges to EPA’s 

proposed interpretation of CAA § 169(1), even if it is by parties other than NRDC and the Sierra Club. 

When that challenge comes, EPA’s reliance on Alabama Power might not be sufficient to protect smaller 

sources of GHG emissions. 

 In estimating the number of sources that would be subject to NSR for GHGs, EPA has used a 

“capacity factor” to discount emissions based on actual operations. EPA stated that “the interpretation of 

the term ‘potential to emit’ ... would determine whether they would be considered ‘major’ for GHG 

emissions under PSD,” 73 Fed. Reg. at 44499, suggesting that the Agency may read the term “potential to 

emit” differently than it does today. As stated above, this interpretation would violate EPA’s existing 

regulations requiring potential to emit calculations to be based on a hypothetical scenario where the 

source runs at full capacity 8,760 hours per year. Several industries currently subject to NSR have 

unsuccessfully argued that NSR’s potential to emit calculations over-estimate actual emissions. Only 

now, however, does EPA consider a “capacity factor” approach to make more realistic estimates of the 

number of sources that would be subject to NSR. In fact, the ANPR states that, for small sources, “the 

interpretation of the term ‘potential to emit’ ... would determine whether they would be considered 

‘major’ for GHG emissions under PSD.” 73 Fed. Reg. at 44499. Should EPA wish to reduce the number 

of sources subject to NSR, it must modify its regulatory definition of potential to emit through the 

rulemaking process, not through a string of guidance memoranda or litigation positions, as it has done in 

the past with other aspects of NSR. In addition, if EPA adopts this “capacity factor” view of “potential to 

emit” for carbon dioxide, it should do so formally for all air pollutants. Interpreting “potential to emit” 

differently for one pollutant but not others lacks any rational basis and would be an arbitrary and 

capricious reading of the law. In other words, EPA can not game the regulatory language to reach a 

preferred result for carbon dioxide. 

 When applied to EPA’s claim for administrative necessity in this instance, however, the argument 

has serious legal vulnerabilities. In Alabama Power, the court surveyed prior uses of the exemptions 

where administrative agencies could not carry out a mandatory duty for lack of funding, time or qualified 

personnel. The heart of this “administrative necessity” doctrine is that courts may “uphold streamlined 

agency approaches or procedures where the conventional course, typically case-by-case determinations, 

would, as a practical matter, prevent the agency from carrying out the mission assigned to it by 

Congress.” Id. (emphasis added). Here, Congress did not task EPA with the mission of regulating GHG 

emissions. Instead, the Agency contemplates taking on this burden absent any authorizing legislation and 

with a legislative history that explicitly disowns such commands. Where EPA, and not Congress, is the 

source of such administrative burdens, it should not be allowed to craft administrative exemptions in 

contravention of the statutory language. 

IV. EPA MUST CONSIDER THE CLEAN AIR ACT’s SUITABILITY FOR REGULATING GHGs 

A. The Clean Air Act Is Designed To Address Local And Regional Pollutants 

10
The Clean Air Act is designed to control traditional air pollutants. By way of example, under one 

of the CAA’s core provisions and programs, the EPA administrator specifies a particular maximum 

atmospheric concentration for each pollutant, called a National Ambient Air Quality Standard 

(“NAAQS”), 42 U.S.C. § 7408, and then each state must devise a State Implementation Plan (“SIP”) to 

achieve that concentration within the state. 42 U.S.C. § 7410. Regions that achieve that concentration 

level are designated “attainment areas” and those that do not are designated as “non-attainment areas.” 

States that contain non-attainment areas are subject to increasingly severe punishments, including 

withdrawal of highway funding. See 42 U.S.C. § 7509. 

 

 This framework, with its complex balancing of state and federal powers, is sensible when a state 

can control the local concentration of the listed pollutant within its boundaries. When a state must control 

lead concentrations in the air, it limits the lead that its industries can emit. But a state has no real control 

over the carbon dioxide concentrations in the local air, because carbon dioxide and other GHGs are longlived, well-mixed in the atmosphere, and diffuse rapidly, so that they are relatively evenly distributed 

around the globe. So the carbon dioxide concentration at any spot on the globe has effectively no relation 

to nearby emissions; instead it is determined by the collective actions of every CO2 emitter in the world. 

Because CO2 persists in the atmosphere for decades, local concentrations depend not only on all current 

global emissions but on decades of past emissions. The problem is compounded by the additional 

emissions of other GHGs such as methane (agriculture, natural gas production, wetlands) and nitrous 

oxide (agriculture). 

 

 GHGs’ spatial and temporal diffusion makes the CAA’s carefully crafted provisions for state 

implementation plans and local enforcement unworkable. For example, designating Vanderburgh 

County, Indiana as an attainment or non-attainment area for CO2 would be pointless. No state regulation 

could possibly lower the concentration of CO2 or other GHGs in that county’s air. Those concentrations 

will be determined by global activity—by industries and consumers everywhere in the world, from China 

to India to Russia. And the county’s ambient CO2 levels will always be almost identical to any other 

county in the United States because CO2 is uniformly distributed around the globe. So if EPA chooses a 

NAAQS for CO2, it will effectively designate every county in the United States as either being in 

attainment, or being in non-attainment, but regardless, no area will be able to do anything to affect its 

attainment status 

 The fundamental differences between GHGs and existing criteria pollutants currently regulated 

under the Act would make the CAA’s core provisions a useless and costly exercise in paper shuffling. 

EPA would have to prescribe a NAAQS that it knows that states cannot meet—or prescribe one that they 

cannot avoid meeting. States, in turn, would have to submit detailed SIPs, including timetables, funding 

details, and monitoring and enforcement procedures, see 42 U.S.C. § 7410, describing how they will 

accomplish a task which everyone acknowledges is impossible. 

 But for all its pointlessness, CAA regulation of GHGs could also cause great harm. First, if states 

are in non-attainment status, they would be subject to severe statutory sanctions. Second, and regardless 

of attainment status, millions of individuals and businesses would be subject to intrusive and expensive 

permitting requirements and emissions controls for new sources. EPA argues that it could avoid 

sanctioning states by relying on 42 U.S.C. § 7409a, a section entitled “International border areas” that 

allows the agency to approve a SIP if the state demonstrates that the SIP would have been adequate to 

maintain the NAAQS “but for emissions emanating from outside of the United States.” See 73 Fed. Reg. 

at 44481. It is not at all clear that a court would allow EPA to use this provision, entitled “International 

border areas” to excuse every state and county’s failure to achieve the NAAQS. If it did, the entire SIP 

structure would be a dead letter because “but for” international emissions no state could possibly exceed a 

GHG NAAQS: if no other country emitted CO2, any state’s emissions would disperse around the globe, 

leaving little trace within its borders. But even if a court approved this strange consequence of treating 

11
CO2 as a regulated CAA pollutant, EPA would still have to enforce the CAA stringent non-attainment 

new source requirements. Id. As explained below, applying these requirements to GHG emissions, 

including CO2, would swamp the agency and bring the economy to a standstill while providing negligible 

environmental benefits. 

B. The Ramifications Of Regulating GHGs Under the PSD Program Demonstrates the Utter 

Infeasibility of Using the Clean Air Act as a Tool to Address GHG Emissions. 

 EPA has reviewed at length many of the difficulties and uncertainties that would arise in 

attempting to regulate GHG emissions through the New Source Review/ Prevention of Significant 

Deterioration (“NSR”) program. The NAM shares many of EPA’s concerns regarding the pragmatic 

difficulties in applying NSR to GHG emissions and the effect that NSR would have on the economy. We 

disagree, however, that EPA can avoid these consequences by creatively “tailoring” the NSR program to 

reduce its impact. As discussed in more detail below, EPA’s legal theories are deficient as a matter of 

law and stand significant risk of being rejected by the courts. 

 1. NSR Overview 

 

 The goal of the NSR program is to require state of the art pollution controls at the time of 

construction or, for existing sources, at the time of a major modification. NSR only applies to regulated 

air pollutants. Not every air pollutant is regulated. For Title I of the CAA, an air pollutant becomes 

“regulated” after the Administrator issues an endangerment finding. See 42 U.S.C. § 7408(a)(1)(A); 40 

C.F.R. § 52.21(b)(50)(i) (defining “Regulated NSR pollutant” to include any pollutant subject to an 

endangerment finding under CAA § 108). Although the Petitioners in Massachusetts v. EPA only sought 

an endangerment finding for certain GHGs as applied to light duty vehicles, the endangerment finding 

criteria are virtually identical and an endangerment finding under Title II could trigger an endangerment 

finding under Title I. The NAM is not aware of any legal justification for finding that carbon dioxide 

endangers the public health and welfare under Section 202 but not Section 108. 

 

 The NSR program applies to any new stationary source emitting a threshold level of regulated air 

pollutants or a modified source where the modification triggers emission increases above a significance 

level. 42 U.S.C. § 7479(1); 40 C.F.R. § 52.21(b)(23)(i). For new sources, if the source is a listed source 

category,1

 it need only have the potential to emit 100 tons of any air pollutant to fall under NSR; unlisted 

sources must have the potential to emit 250 tons per year of any air pollutant (“100 TPY/ 250 TPY”). 40 

C.F.R. Sec. 52.21(b)(23)(i). 

 EPA has stated that for any unlisted air pollutant, such as carbon dioxide, the significance level is 

zero. Id. § 52.21(b)(23)(ii). For any source with the potential to emit more than zero tons of carbon 

dioxide, unless EPA sets a higher significance level by regulation, that source will require an NSR permit 

upon initial construction or any “major modification.” § 52.21(a)(2)(ii); 73 Fed. Reg. at 44498. This 

means that an endangerment finding for GHGs, either individually or as a group, would trigger NSR for 

every stationary source—every building, structure, installation or facility—that emits any carbon dioxide 

or other GHG. See 40 C.F.R. § 52.21(b)(5) (defining stationary source). If EPA does regulate GHG 

emissions under NSR, NAM expects that the Agency will set significance levels as high as possible under 

 

1

 These listed source categories include, by way of examples, fossil-fuel fired electricity generating plants of 

significant size, kraft pulp mills, Portland Cement plants, iron and steel mill plants, primary aluminum ore reduction 

plants, municipal incinerators, petroleum refineries, phosphate rock processing plants, coke oven batteries, carbon 

black plants (furnace process), most smelters, chemical plants, fossil-fuel boilers of significant size and glass fiber 

process plants. 42 U.S.C. § 7479(1). 

 

12
42 U.S.C. § 7479(1), which is 100 tons per year for listed source categories and 250 tons per year for all 

other sources. The Agency appears to share this assumption. See 73 Fed. Reg. at 44500. 

 

 2. EPA Grossly Underestimates the Impact of PSD for GHGs. 

 EPA’s estimate that NSR regulation of GHGs would only capture 2,000-3,000 additional sources 

(73 Fed. Reg. at 44499) is drastically low. EPA’s estimate, heavy with caveats regarding uncertainties, is 

based on a methodology contradictory to NSR regulations. EPA calculated CO2 emissions based on a 

“capacity factor,” which discounted potential emissions based on actual operations of energy-using 

equipment. Id. at 44498-99 (explaining that a natural gas fired furnace would need only consume fuel at a 

rate of 0.49 mmBtu/hr to emit 250 tons per year of CO2, but that “[i]n practice a furnace like this would 

likely operate far less than year round and its actual emissions would be well below 250 tpy.”). Not only 

is this estimate of a “capacity factor” unreliable due to a lack of information, it is arguably unlawful under 

NSR, which determines applicability based on a facility’s potential-to-emit a pollutant. The potential-toemit calculation assumes that a new facility operates at maximum capacity around the clock, 365 days a 

year. 40 C.F.R. § 52.21(b)(4). If EPA applied existing NSR regulations, the number of new sources 

requiring permits is much higher. 

 The U.S. Chamber of Commerce released a study in September 2008, Portia M.E. Mills, Mark P. 

Mills, A Regulatory Burden: The Compliance Dimension of Regulating CO2 as a Pollutant (September 

2008) (“Mills study”), which shows a dramatic potential expansion of the scope of the CAA jurisdiction 

posed by GHG regulation under the CAA. The Mills study analyzes data from the U.S. Census Bureau 

and Energy Information Administration data to draw its conclusions. It shows, for example, that 

triggering existing emission thresholds for operating and preconstruction permits such as Title V and 

Prevention of Significant Deterioration (PSD), among others, would result in the regulation of 

approximately 200,000 manufacturing facilities nationwide. That number would increase to more than 

one million regulated entities economy-wide, according to the study. The report also states that any 

source or facility using more than $70,000 per year of natural gas or oil “for stationary equipment” would 

easily fall within the purview of a PSD permit. The Mills study concluded that over a million businesses 

actually emit 250 tons of carbon dioxide or more per year. This is based on the sources’ actual CO2

emissions, not the potential to emit, as required by NSR, meaning that the Mills Study actually 

underestimates the number of businesses that would require NSR permits. Additionally, the Mills Study 

does not consider GHGs other than carbon dioxide. EPA requested comment on whether there are large 

categories of sources for GHGs other than CO2 (73 Fed. Reg. at 44499). According to EPA’s most recent 

GHG inventory, several industries emit compounds with a high global warming potential, relative to 

carbon dioxide. See EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2006 at ES-5 to 

ES-5,6 (Apr. 15, 2008) (“2008 GHG Inventory”). Should EPA choose to regulate all GHGs on a carbon 

dioxide-equivalent basis (“CO2E”), the NSR program could capture even more sources. See 73 Fed. Reg. 

at 44505 (considering the use of CO2E emissions for the NSR program).2

 For example, semi-conductor 

manufacturers are not large emitters of carbon dioxide, but do emit small quantities of 

hydrofluorocarbons (“HFCs”), perfluorocarbons (“PFCs”) and sulfur hexafluoride. See 2008 GHG 

 

2

 EPA is also considering designation of “Carbon Equivalent” (“CE”) as the NSR pollutant to be regulated. 73 Fed. 

Reg. at 44505. Under a CE metric, sources could emit 917 tons of CO2 before reaching a CE threshold of 250 tons. 

Id. If EPA is intent on regulating GHGs under the NSR program, NAM believes that using CE is preferable to 

CO2E and more defensible than EPA’s “tailoring” approaches, discussed below. Although NAM agrees that this 

“approach would likely result in fewer sources being added to the PSD program for GHGs,” id., the actual number 

of newly regulated sources can not be known without further study. 

13
Inventory at ES-6. Under a CO2E basis, if a semi-conductor manufacturer emits just 77 pounds of 

tetrafluoromethane (“CF4”), it will require an NSR permit.3

 

 3. Triggering PSD in Turn could Trigger NAAQS Ramifications. 

 

 It is virtually impossible to separate the NSR program from the National Ambient Air Quality 

Standards (“NAAQS”) under 42 U.S.C. § 7408. The stringency of regulation under the NSR program 

depends entirely on whether EPA sets a NAAQS and whether EPA classifies the area where a stationary 

source is located as attainment or non-attainment for a specific air pollutant. If the area is designated as 

being in attainment, or where there is no NAAQS set for the regulated pollutant, then new and modified 

sources must install the Best Available Control Technology (“BACT”). 42 U.S.C. §§ 7475(a); 40 C.F.R. 

§ 52.21(b)(12). If the area is designated as non-attainment, then new and modified sources would have to 

install control technologies achieving the Lowest Achievable Emission Rate (“LAER”). Given the global 

nature of GHG emissions, if EPA were to set a NAAQS for GHGs, EPA would either designate the entire 

country as being in attainment or non-attainment. There would be no rational reason to differentiate 

between different areas of the country for designation purposes. As explained below, however, regardless 

of EPA’s attainment designation, GHG regulation under NSR would be administratively unwieldy, 

economically harmful and wholly ineffective in reducing global GHG levels. 

 4. A NSR Permitting Program for GHGs Is Unfeasible and Unrealistic. 

 The NSR program is renowned for its delays, expense and subjecting covered stationary sources 

to litigation exposure. A review of 391 NSR/ PSD permits issued between 1997 and early 2001 found 

that permit application processing time averaged 7.2 months, from the permitting agency’s receipt of the 

application until the issuance of the final permit. EPA, NSR 90-Day Review Background Paper at 7 

(June 22, 2001) (available at www.epa.gov/oar/nsr/documents/nsr-review.pdf “NSR 90-Day Review”). 

The 7.2 month figure is not a reliable estimate of when a covered stationary source can expect a final 

permit. According to EPA’s study, permit processing times have a wide range, extending from 1.6 

months to 35 months. Id. Nor does this estimate include the time required to hire consultants and 

lawyers to determine NSR applicability, prepare an application, wait for the permitting agency to issue a 

completeness determination and defend against administrative and judicial appeals once the final permit 

is issued. 

 

 The NSR process is also very expensive. Permit application fees can exceed $15,000 with the 

cost of preparing an application, complete with site drawings and other technical information, in excess of 

$50,000. Air quality modeling can range from $75,000-$300,000. If air monitoring near the site is 

already available, the source may have to compile its own monitoring information, at a cost of $50,000 - 

$75,000. And, if the site or modification is proposed in a non-attainment area, the required offsets can 

routinely exceed $500,000. None of these estimates include additional fees for attorneys and consultants 

which can range into the hundreds of thousands of dollars, or the cost of whatever pollution controls the 

permitting agency requires as BACT or LAER. 

 As it currently exists, the permitting process is described as “an extremely complex and timeconsuming process” and the “financial impacts from permitting (including NSR) can change the 

economic feasibility of the project.” NSR 90-Day Review at 11. This assessment, and the accompanying 

cost and time estimates, however, exist only under the NSR program as it is currently implemented. If 

EPA regulates GHGs under the NSR program, none of these estimates will apply. The crush of new 

permit applications will inevitably slow the application review process to a near halt. Each permit 

 

3 See 2008 GHG Inventory at ES-3 (tetrafluoromethane has a global warming potential 6,500 times that of carbon 

dioxide). 

14
requires a case-by-case review, a public hearing and the receipt and review of public comments on the 

proposed permit. This would not just be an initial wave of new applications that permitting agencies 

could endure for a few years; with an increase in newly regulated sources would also come an increase in 

applications associated with major modifications to existing sources. As EPA noted in the ANPR, due to 

the nature of GHG emissions, “[r]elatively small changes in energy use that cause criteria pollutant 

emissions too small to trigger PSD would newly trigger PSD at such facilities because such changes 

would likely result in greater CO2 increases.” 73 Fed. Reg. at 44499. As an example, EPA noted that a 

500 MW power plant will exceed its 100 TPY threshold by just 10 extra minutes of operation. Id. For 

manufacturers and other newly regulated GHG sources, even relatively small changes would trigger the 

obligation for a new NSR permit application. Given this consistent volume of modification-related 

permit applications, there is simply no conceivable way that permitting agencies could comply with the 

CAA’s mandate to issue or deny a final permit within one year after receiving a completed application. 

42 U.S.C. § 7475(c). 

 Under an NSR program that regulates GHGs, the delay, cost and uncertainty would likely give 

many small- and mid-sized manufacturers little choice but to forego the construction of new sources or 

expansions for existing sources, including projects that would improve energy efficiency. Significant 

delays will hinder their ability to obtain financing for new projects. Even where financing is successfully 

obtained, source owners must sit idly by incurring interest on loans and tying up their own capital 

dedicated to the proposed project until a final permit is issued (assuming there is no subsequent appeal). 

Expanding NSR to cover GHG emissions, based on the 100 TPY/ 250 TPY threshold will severely 

disable the ability of small and mid-sized manufacturers to expand or change their operations to 

accommodate increased demand for their products or shift the processes away from products subject to 

declining demand. This will further disadvantage American businesses in an increasingly globalized 

economy and inevitably result in lost jobs and diminishing investments in America’s industrial 

infrastructure. 

 

 5. A NSR Permitting Program for GHGs Will not Improve the Environment 

 Regulating GHGs, either separately or individually, would be largely ineffective under NSR. 

First, the designation of any specific area or the entire country as attainment or non-attainment would be 

pointless, given the global, homogenized nature of GHG ambient levels. Second, if EPA opted to 

designate any area or the country as a whole as a non-attainment area, stationary source adherence to 

LAER would be incredibly disruptive to the economy. 

 NSR requires BACT where the source is located in an area that EPA designates to be in 

attainment with the NAAQS for any specific pollutant. If the area is non-attainment, then the LAER 

standard applies. The NAAQS program was designed for controlling air pollutant emissions in localized 

areas. This has no application to GHG emissions, which are evenly distributed throughout the world. 

Setting a GHG NAAQS where the entire country is in attainment would do little to reduce emissions. 

Where areas are already in attainment, making local stationary sources subject to Prevention of 

Significant Deterioration (“PSD”) standards, states might choose the PSD program to be the only measure 

to prevent nonattainment but such reliance on PSD will fail to prevent nonattainment while imposing very 

serious impacts on business, state resources, and the economy. In light of evidence that reliance merely 

on PSD to prevent nonattainment will fail, as the concentration of GHGs in the atmosphere increases, 

states would be compelled to implement additional measures to demonstrate that they will not fail to 

maintain compliance with the NAAQS. 

 Each stationary source applying for a PSD permit must conduct increment modeling to determine 

if its proposed construction or modification would cause or contribute to a NAAQS violation. This type 

of modeling, required under 42 U.S.C. § 7475(a)(3), and the related analysis of increment consumption, 

15
should have no meaning for a GHG NAAQS. As both EPA and the Department of the Interior concluded 

in memoranda issued on October 3, 2008, current modeling capabilities can not determine a single, 

identifiable source’s contribution to the aggregate global concentration of climate change.4

 EPA declined 

to “address in detail” these requirements. The Agency should explain whether or not it would require 

stationary sources to expend significant amounts of money to perform meaningless modeling of GHG 

emissions, as required by CAA § 165(a)(3). If not, the Agency should explain how it can relieve 

stationary sources of this statutory obligation without legislative amendment. 

Lastly, EPA has not explained what would constitute BACT or LAER for GHG emissions under 

the NSR program, referencing only the possibility of future innovations. See 73 Fed. Reg. at 44501 (PSD 

“might result in ... CO2 reducing technologies, such as more efficient combustion processes.”).5

 BACT 

requires the permitting agency to perform a collateral impact analysis considering the “energy, 

environmental and economic impacts” of the selected control technology. Id. EPA guidance interprets 

this collateral impact analysis to require a review of the cost effectiveness (cost per ton of pollutant 

reduced) and an incremental cost effectiveness basis (cost per ton of pollutant reduced compared to the 

next most stringent control option). Draft NSR Review Workshop Manual (1990) at B.31, B.41-45. In 

its example BACT analysis, the Draft NSR Review Workshop Manual advises permitting authorities that 

a cost effectiveness of $6,600 per ton removed and an incremental cost effectiveness of $56,200 is 

“economically infeasible.” Id. at B.68; see also In re Genesee Power Station, PSD Appeal Nos. 93-1 – 

93.7 at 19 (EAB Oct. 22, 1993) (it is not cost-effective to require $5 million in pollution controls to 

reduce particulate matter emissions by 23 tons per year); In re Inter-Power of New York, Inc., 5 E.A.D. 

130, 148 (EAB 1994) (upholding permitting agency’s decision not require low sulfur coal at a cost of 

$4,000-$6,000 per ton of SO2 removed). 

 This leaves energy efficiency standards as the only practical control technology under BACT. 

See 73 Fed. Reg. at 44,509 (even where add on controls become available, “the focus of presumptive 

BACT for CO2 would likely be on energy efficiency standards for the installed equipment”). Owners of 

new stationary sources already have ample economic incentives to incorporate energy efficiencies into 

new manufacturing facilities. Thus, BACT for new sources would simply compel what is already 

undertaken on a voluntary basis, but with the addition of onerous permitting, recordkeeping, monitoring 

and reporting requirements—all subject to stiff penalties for non-compliance. For what would be 

“modified sources,” owners would incorporate energy efficiency upgrades when feasible or affordable. 

NSR, however, would compel these upgrades unless they are deemed egregiously expensive under a 

BACT collateral impact review. In this case, newly regulated stationary sources would likely behave like 

those currently regulated—avoiding major modifications, including expansions and manufacturing 

process changes, in order to avoid the additional cost of permitting and delays associated with permitting. 

 

4

 EPA requested comments on the implications of GHG regulation on NSR requirements to consult with Federal 

Land Managers, assess the potential impact of proposed new sources or major modifications on Air Quality Related 

Values for Class I Areas and the potential impairment of soils and vegetation. 73 Fed. Reg. at 44498. To the extent 

that GHG emissions would have any impact, they would be measured through modeling. Without modeling 

programs capable of determining single source contributions, no applicant could comply with these requirements. 

5

 EPA claims that BACT “would likely involve decisions on how proposed installations of equipment and processes 

for a specific source category can be redesigned to make those sources more energy efficient while taking cost 

considerations into account.” 73 Fed. Reg. at 44502. Manufacturers already have ample cost-savings incentives to 

find as many affordable energy efficiencies as possible. See, e.g., Mark Schipper, Energy-Related Carbon Dioxide 

Emissions in U.S. Manufacturing at 9-10 (EIA Nov. 2006) (energy intensity for most manufacturers declined 

between 1991 and 2002 despite increases in gross manufacturing output). NAM is skeptical that EPA engineers 

could make better decisions in designing more energy efficient and cost-effective equipment and processes than 

those who are actually working in the manufacturing sector. 

16
 Should EPA opt to designate the United States as a non-attainment area for GHGs, regulation 

under nonattainment NSR would not only be ineffective, as it would be under a BACT standard, but even 

more certain to be economically destructive. When an area is designated as non-attainment, all sources 

are subject to a 100 TPY threshold. New or modified stationary sources must install LAER controls, and 

emission offsets to actually reduce emissions and bring the area closer to attainment. LAER does not 

consider costs. 

 6. EPA’s Proposals for “Tailoring” Existing NSR Requirements Are 

 Not Likely to Prevail. 

 The NAM appreciates that EPA largely recognizes many of the NSR program’s structural 

deficiencies in reducing GHG emissions. We disagree, however, with EPA’s optimism that, through 

creative legal “tailoring” and interpretation, it can mitigate the destructive consequences of NSR 

regulation or streamline the more onerous aspects of the permit process. See 73 Fed. Reg. at 44501 

(“unless there are ways to effectively streamline BACT determinations and permitting for smaller sources 

... BACT would not appear to be an efficient regulatory approach ....”). Many of the potential legal 

constructions have either failed in the past or are likely to fail when reviewed by a court. 

C. EPA Must Consider Acting Under Section 115 Prior to Proceeding Under Other Provisions. 

 EPA has invited comment on alternative approaches to an endangerment finding under Section 

202. Section 115 of the Act - which addresses international air pollution - is an obvious candidate. Yet, 

EPA has largely ignored Section 115, devoting just a few paragraphs to it in the ANPR. 

 Section 115 provides EPA with authority to address pollutants emitted in the United States that 

endanger public health or welfare in other countries. 42 U.S.C. § 7415. Section 115 thus has much more 

obvious application to GHGs than the Act’s other provisions. GHGs are truly global pollutants with 

international ramifications. Because GHGs emitted in the United States “become well mixed throughout 

the global atmosphere,” they “affect climate everywhere in the world.” ANPR, 73 Fed. Reg. 44401. The 

apparent fit between Section 115 and GHGs means that EPA must consider and explain why EPA would 

act under other provisions of the Act instead. 

 EPA should consider acting under Section 115 for the additional reason that the provision may 

provide EPA with unique flexibility to address GHGs without triggering the cascade of mandatory and illadvised regulations under the Act’s other provisions. Because Section 115’s endangerment determination 

focuses on the pollutant’s effect in other countries, it differs fundamentally from the endangerment 

determination of other CAA provisions, which focus on effects in the United States. Further, the burden 

of proof for Section 115—which can rely on “reports, surveys or studies from any duly constituted 

international agency,” 42 U.S.C. § 7415(a)—is lower than the endangerment determination in Section 202 

and other Clean Air Act provisions, which require an independent assessment and record by EPA. EPA 

may therefore have room to make an endangerment finding under Section 115 without being forced to 

make endangerment findings under other CAA provisions. As explained above, Massachusetts v. EPA

left EPA with discretion not to make an endangerment determination under Section 202. Opting to follow 

Section 115’s alternative, better-suited regulatory approach would be a valid reason to one reason to 

exercise that discretion. 

 Another practical advantage of Section 115 is that resulting emission controls arguably are not 

“regulations under the Act,” and therefore would not trigger NSR permitting requirements. This is 

because Section 115 uniquely does not obligate EPA to issue any federal control standards. Instead, 

Section 115 requires EPA only to give States notice of the endangerment finding, which automatically 

constitutes a “finding under Section 110(a)(2)(H)(ii).” 42 U.S.C. § 7415(b). That provision, in turn, 

17
requires States to revise their SIPs in order to attain a NAAQS or “to otherwise comply with any 

additional requirements established under [the CAA].” Because of the second clause in that Section (“or 

to otherwise comply . . .”), it appears that EPA would give notice under Section 115 even in the absence 

of a NAAQS relating to GHGs. Arguably, then, Section 115 permits EPA to coordinate state efforts to 

regulate GHGs through their SIPs without EPA having to issue any particular federal requirement 

controlling GHG emissions under the Act. 

 Based on that reading, state regulations of GHGs triggered by Section 115 would not render 

GHGs “subject to regulation under the Act” for purposes of the “regulated NSR pollutant” definition. 40 

C.F.R. § 52.50(b)(50). As EPA has previously explained regulation of a pollutant under a SIP alone does 

not make a pollutant subject to regulation under the Act.6

 

 Both because the plain text of Section 115 more naturally applies to GHGs than do other 

provisions of the Act, and because Section 115 offers the possibility of requiring some GHG regulation 

without triggering the cascade of other CAA regulatory mechanisms, EPA has a responsibility to consider 

and explain whether to act under Section 115 rather than Section 202. 

V. THE PROPOSAL HAS NOT OFFERED A SUFFICIENT BASIS FOR, AND INDEED THERE 

IS NO SUFFICIENT BASIS FOR, A DETERMINATION THAT PUBLIC HEALTH IS 

ENDANGERED. 

EPA’s proposal to find that GHG emissions endanger public health based solely on indirect 

effects of climate change is inconsistent with the CAA’s text and legislative history, as well as established 

EPA practice. See 74 Fed. Reg. 18,901-02. Since EPA has concluded that exposure to current and 

projected levels of ambient GHG concentrations will cause no direct adverse health impacts, EPA cannot 

properly find that GHG emissions may endanger public health. 

A. The Clean Air Act Defines Impacts From Climate and Weather As “Welfare” Effects, 

 Not Health Effects. 

The CAA, including Section 202(a)(1), requires EPA to consider endangerment of public health 

separately from endangerment of public welfare. The Proposal collapses those categories by failing to 

heed the Act’s requirement to consider climate and weather change as effects on welfare and not on 

public health. 

While the Act does not provide a definition of public health, Section 302(h) of the Act addresses 

the meaning of “welfare”: 

All language referring to effects on welfare includes, but is not limited to, effects on soils, 

water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and 

climate, damage to and deterioration of property, and hazards to transportation, as well as 

effects on economic values and on personal comfort and well-being, whether caused by 

transformation, conversion, or combination with other air pollutants. 

42 U.S.C. § 7602(h) (emphasis added). Thus, Congress has instructed that effects on weather and climate 

are to be considered as potentially endangering welfare – not human health. Congress surely knew that 

 

6

 Stephen L. Johnson, Administrator, U.S. EPA, EPA’s Interpretation of Regulations That Determine Pollutants 

Covered By Federal Prevention of Significant Deterioration (PSD) Permit Program (Dec. 18, 2008), at 14, notice 

published at 73 Fed. Reg. 80,300 (Dec. 31, 2008). 

18
weather and climatic events such as flooding and heat waves could affect human health, but Congress 

nonetheless classified air pollutants’ effects on weather and climate as effects on welfare. 

 Other sections of the CAA confirm that “public health” effects encompass only health effects 

resulting directly from exposure to the pollutants in question. For example, CAA Section 103 requires 

EPA to conduct research on the “health effects” of air pollutants in that the Administrator must consider 

the “risks to human health from both routine and accidental exposures to” to air pollutants. 42 U.S.C. 

§ 7403(d). The required research on “health effects” clearly focuses on effects from direct exposure to 

the pollutant. E.g., id. § 7403(d)(2)(C)(i) (requiring preparation of “health assessments” for hazardous air 

pollutants that include evaluation of “toxicological and epidemiological information for the pollutant to 

ascertain the levels of human exposure which pose a significant threat to human health and the associated 

acute, subacute, and chronic adverse health effects”). Similarly, CAA Section 112 discusses “human 

health effects” as those resulting from “inhalation or other routes of exposure.” 42 U.S.C. § 7412(b)(2). 

 B. The Clean Air Act’s Legislative History Confirms That “Public Health” Effects Include 

 Only Impacts From Direct Exposure. 

 The legislative history of Section 302(h)’s welfare definition and the related Section 109, which 

calls for primary and secondary NAAQS, show that Congress intended “public health” effects to include 

only direct effects of exposure to a pollutant. 

 In 1970, Congress expanded the prior list of “adverse effects on welfare” to include the effects on 

“soil, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate,” as 

well as effects on “economic values” and “personal comfort and well-being.” See 1970 Legis. Hist. 1543, 

1571 (quoting Clean Air Act § 302(g)). That expanded list of welfare effects accompanied Section 109’s 

creation of a primary NAAQS—which focuses on public health—and a secondary NAAQS—which 

focuses on public welfare. 

 Crucially, the bill sponsors described the primary NAAQS (then called the “standard”) as tied to 

direct health effects, while describing the secondary NAAQS (then called the “goal”) as encompassing 

effects on health, but only indirectly along with effects on welfare. See Sen. Debate (Sept. 21, 1970), 

1970 Leg. Hist. 227 (statement of Sen. Muskie) (describing the “standard” as forcing the “air quality [to] 

be better than that level of quality which protects health. Anybody in the Nation ought to be able at some 

specific point in the future to breathe healthy air”; in contrast, the “goal” would be “protective against 

any known or anticipated adverse environmental effects”); id. at 260 (statement of Sen. Cooper) 

(“National air quality goals, as distinguished from standards, goals protective of public welfare as well as 

health . . . would also be established”). Thus, Congress understood that welfare effects could have 

indirect health effects, through changes in climate or weather, but Congress intended “health effects,” as 

such, to encompass only direct effects of exposure to pollutants. See S. Rep. No. 91-1196 (1970), at 11 

(noting that national “standards” would “protect[] . . . health,” while national “goals” would protect 

“public health and welfare from . . . effects on soils, water, vegetation, . . . climate . . . .”). 

 C. EPA Has Traditionally Limited “Health Effects” to Effects of Direct Exposure. 

 

 Given the CAA’s text and legislative history, it is not surprising that EPA has historically treated 

“health impacts” as encompassing only health impacts from exposure to air pollution. EPA’s current 

proposal thus represents a radical break from that practice – a change not supported by adequate 

explanation. 

 Importantly, EPA treated climate change as a welfare effect, and not as a health effect, in the 

endangerment finding under Section 111 when EPA listed municipal solid waste landfills as a source 

19
category. Standards of Performance for New Municipal Solid Waste Landfills, 56 Fed. Reg. 24469 (May 

30, 1991). Specifically, EPA identified global climate change, along with such effects as reduced plant 

growth and decreased crop yield, as an effect on public welfare. The current EPA proposal thus 

represents a change in position without articulating a rationale for such a significant change. 

 

 Further, EPA has consistently considered only direct effects as health effects when setting or 

reviewing the primary and secondary NAAQS. In 1995, EPA reviewed the NO2 NAAQS and identified 

public health effects as lung cell injury, death, increased susceptibility to respiratory illness in children, 

pulmonary adema, and increased airway resistance in asthmatics. See Review of the National Ambient 

Air Quality Standards for Nitrogen Dioxide, Assessment of Technical and Scientific Information, US 

EPA (September 1995). In contrast, EPA identified “welfare effects” as impacts to ecosystems, including 

adverse effects to vegetation, wetlands, aquatic systems, soil, and toxicity to wildlife, and impacts to 

visibility and man-made materials. Id. 

 Additionally, courts have affirmed EPA’s past decisions to limit “health effects” to direct impacts 

on human health. In NRDC v. EPA, the D.C. Circuit rejected the argument that, in setting a primary 

NAAQS, EPA must consider the health effects of increased unemployment that could result from a more 

stringent standard. 902 F.2d 962, 973 (D.C. Cir. 1990). The Court explained that, “[i]t is only the health 

effects relating to pollutants in the air that EPA may consider.” Id. EPA later relied on that holding to 

defend its decision to set a primary NAAQS for ozone based solely on direct health effects of ozone. See 

EPA Pet’n for Rehearing, Am. Trucking Ass’n v. EPA, No. 97-1440 (D.C. Cir. June 28, 1999) (arguing 

that the primary NAAQS should be set through consideration of only “direct adverse effects on public 

health, and not indirect, allegedly beneficial effects”). 

EPA fully acknowledges that exposure to GHGs poses no direct health impacts. 74 Fed. Reg. 

18901. As such, GHGs cannot be found to endanger public health, given the Act’s text and legislative 

history, and past Agency practice. We therefore urge EPA to withdraw its proposed finding that GHGs 

cause or contribute to air pollution which may reasonably be anticipated to endanger public health. 

 

VI. THE ADMINISTRATOR’S POWER TO MAKE AN ENDANGERMENT FINDING 

 ONLY EXTENDS TO POLLUTANTS EMITTED BY MOTOR VEHICLES 

 The Administrator’s proposal to find endangerment for two pollutants that are not emitted by 

motor vehicles is flawed. The Administrator has consistently maintained that the sole authority 

supporting an endangerment finding is CAA § 202. And, the Supreme Court has stated – and EPA itself 

has recognized – that the endangerment determination must be grounded in the requirements of section 

202(a). 74 FR 18889. Thus, the proposal’s section on “Statutory Basis for this Proposal” begins: 

Section 202(a)(1) of the CAA states that ‘‘The Administrator shall by 

regulation prescribe (and from time to time revise) * * * standards 

applicable to the emission of any air pollutant from any class or classes 

of new motor vehicles or new motor vehicle engines, which in [her] 

judgment cause, or contribute to, air pollution which may reasonably be 

anticipated to endanger public health or welfare.’’ 

74 Fed. Reg. 18888 (emphasis added). Therefore, the Administrator’s statutory basis to make an 

endangerment finding is limited to a pollutant from new motor vehicles, or their engines. Yet, the 

proposed endangerment finding purports to apply to two pollutants that are not emitted by any motor 

vehicles: perfluorocarbons and sulfur hexafluoride. 73 Fed. Reg. at 44431. This constitutes an extension 

of the endangerment finding to an area that is divorced from the requirements from section 202(a). 

20
Indeed, EPA is incapable of promulgating any regulations under section 202 that will affect the two 

pollutants not emitted by motor vehicles, since regulations under 202 only can address emissions from 

new motor vehicles. 

 The Administrator does not offer any basis for flouting the statutory language. Instead, she 

asserts: “it is entirely appropriate for the Administrator to define the air pollutant in a manner that 

recognizes the shared relevant properties of all of these six gases, even though they are not all emitted 

from the source category before her.” 74 Fed. Reg. at 18904. She analogizes this category of six GHGs 

to Volatile Organic Compounds (VOCs), which is a category of criteria pollutants. But this misses the 

point. Whether or not any individual source emits all the VOCs, the endangerment finding for VOCs 

only applies to compounds that are emitted by some source subject to the endangerment finding. There is 

no basis in EPA’s past actions for directly contradicting the statutory limitation to pollutants “from any 

class or classes of new motor vehicles or new motor vehicle engines.” 

VII. EPA SHOULD RECOGNIZE THE ADDITIONAL DISCRETION GRANTED IT IN 

CONSIDERING ANY NEW SOURCE PERFORMANCE STANDARD (NSPS) 

ENDANGERMENT FINDINGS 

As the Administrator continues considering an endangerment finding, she should keep in mind 

that CAA § 202 presents a particular endangerment question that differs from the endangerment question 

under CAA § 111’s NSPS program in at least three ways. First, the endangerment question for the NSPS 

program is whether a “category of sources . . . causes, or contributes significantly to, air pollution which 

may reasonably be anticipated to endanger public health or welfare.” CAA § 111(b) (emphasis added). 

The NSPS question thus requires a heightened standard of causation. In considering regulation of 

stationary sources through NSPS, EPA must give effect to the Congress’ direction that an endangerment 

finding is only appropriate when a category of sources “significantly” contributes to dangerous air 

pollution. That word, which is absent from the § 202 provision, must be heeded because “Where 

Congress includes particular language in one section of a statute but omits it in another section of the 

same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate 

inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983). 

 Second, the NSPS provision differs from the CAA § 202 provision in that it allows the 

Administrator to determine the category of sources that it applies to, rather than specifying a particular 

category. The NSPS endangerment question focuses on dangers posed by categories of sources, not 

specific air pollutants. Even if the Administrator makes an endangerment finding for GHGs under § 202, 

that decision would not determine whether any source emits GHGs in a manner that warrants regulation 

under CAA § 111(b). 

 Finally and crucially, the NSPS program gives the Administrator discretion to decide which air 

pollutants to regulate in any given source category. Section 111(b)(1)(B) places two requirements on 

EPA for each source category listed under Section 111(b)(1)(A). First, after listing a source category and 

undergoing notice-and-comment procedures, the Administrator must promulgate “such standards” as the 

Administrator “deems appropriate.” 42 U.S.C. § 7411(b)(1)(B). Both EPA and courts have interpreted 

the “deems appropriate” language as vesting EPA with “significant flexibility in determining which 

pollutants are appropriate for regulation under section 111(b)(1)(B).” 73 Fed. Reg. at 35858 (citing 

National Lime Assoc. v. EPA, 627 F.2d 416, 426 (D.C. Cir. 1980) (explaining reasons for not 

promulgating standards for NOX, SO2, and CO from lime plants). 

21
 Then, every eight years, EPA must review and, if appropriate, revise an NSPS that has been 

established. 42 U.S.C. § 7411(b)(1)(B). As EPA has explained, that requirement does not require EPA to 

include an NSPS “for an air pollutant not already covered by the standard of performance under review.” 

73 Fed. Reg. at 35858. That conclusion follows directly from the text of Section 111, which requires the 

8-year review to encompass only the standards previously promulgated. Id. at 35859. 

 Further, even if Section 111(b)(1)(B)’s eight-year review required promulgation of new 

standards, it would not follow that EPA must set performance standards for all air pollutants emitted by 

the source category. See 73 Fed. Reg. at 35859. Indeed, in 1990, Congress specifically modified the 

definition of “standard of performance” to clarify that it does not require EPA to cover all air pollutants 

emitted from a source category. See id. (noting deletion of word “any” from pre-1990 version of CAA 

§ 111(a)(1)’s definition of “standard of performance” as meaning “a standard for emissions of any air 

pollutant”). 

 Given the text of the Act and EPA’s consistent interpretations, EPA should not rush to develop 

NSPS standards if it finalizes the endangerment finding for GHGs under CAA § 202 and not compel EPA 

to develop performance standards for GHGs under CAA § 111. Moreover, as EPA explained in declining 

to develop a GHG performance standard for oil refineries, there are good reasons why EPA would not 

choose to do so. An NSPS for GHGs could trigger other regulatory requirements under the Act, including 

the NSR program. And, because any NSPS rulemaking accounts for a single source category, it is not an 

effective means of addressing so complex an issue as GHG emissions. Nonetheless, some may argue that 

EPA must and should GHG promulgate performance standards under CAA § 111 if it finalizes an 

endangerment finding for GHGs under CAA § 202. To prevent confusion and uncertainty on that point, 

if EPA does finalize an endangerment finding under CAA § 202, EPA should clarify that such action 

neither compels nor counsels in favor of developing GHG performance standards under CAA § 111. 

Conclusion 

The NAM is willing to engage in a constructive dialogue with policy makers regarding a new and 

modern, comprehensive framework with which to address the challenges posed by GHG emissions. As 

outlined above, the NAM urges EPA to avid a positive endangerment determination before examining the 

economic and regulatory consequences of its proposed action. Such action will precipitate an avalanche 

of rulemakings for GHG emissions that will prolong the current economic pain being born by U.S. 

workers and their families, swamp federal and state regulators, and do nothing to improve environmental 

quality. In fact, an endangerment determination would actually undermine the industrial sector’s ability 

to develop and implement the next generation of energy technologies that will be necessary to deal 

effectively with GHG emissions. The NAM and its 11,000 member companies look forward to working 

with federal policy makers to offer their insights and technical expertise to develop programs that will 

accomplish real environmental objectives in an efficient and rational manner, based on new technologies 

and new ideas. Attempting to address the emerging challenges posed by GHG emissions by means of the 

Clean Air Act, a statute which has been amended over the past three decades and remains the source of 

persistent litigation and counter-regulation will not accomplish these objectives. 

 

22