The National Rural Electric 

Cooperative Association 

Comments 

On 

Proposed Endangerment and Cause or Contribute Findings 

for Greenhouse Gases Under Section 202(a) 

of the Clean Air Act; Proposed Rule 

(74 Fed. Reg. 18886, April 24, 2009) 

 

Submitted Electronically to: 

The Environmental Protection Agency 

Air Docket 

Attention: Docket ID No. EPA-HQ-OAR-2009-0171 

June 23, 2009 

Bill Wemhoff – Sr. Principal, Environmental Policy 

(703) 907-5824 / bill.wemhoff@nreca.coop 

4301 Wilson Boulevard, EU 11-249 

 Arlington, VA, 22203-1860 
Docket ID No. EPA-HQ-OAR-2009-0171 

National Rural Electric Cooperative Association 

Comments: June 23, 2009 

Introduction

The National Rural Electric Cooperative Association (“NRECA”) offers the following 

comments on the Environmental Protection Agency’s (“EPA”) “Proposed Endangerment 

and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the 

Clean Air Act; Proposed Rule,” released for public comment on April 24, 2009.1 

NRECA is the national trade association for more than 900 not-for-profit, member-owned

rural electric cooperative power systems that supply central station electricity to 42 million 

consumers in 47 states. All or portions of 2,500 of the nation’s 3,141 counties are served 

by rural electric cooperatives. The cooperative combined service areas cover 75 percent of 

the U.S. landmass. 

Cooperatives average fewer than seven customers per mile of electric distribution line, the 

lowest density in the industry. Low population densities, together with the issues of 

traversing vast expanses of remote and often rugged topography, present unique economic 

and engineering challenges for electric cooperatives. As well, many co-op consumers face 

economic challenges. The service territory average household income for 786 electric coops (93 percent) falls below the U.S. average household income of $71,212. The service 

territory average household income for all electric co-ops is $61,416. 

Of the more than 900 rural electric cooperatives, 65 rural electric generation and 

transmission cooperatives (“G&Ts”) generate and transmit power to 670 of the 865 

distribution cooperatives. The G&Ts are owned by the distribution cooperatives they 

serve. The remaining distribution cooperatives receive power directly from other 

generation sources within the electric utility sector. A very significant portion of the power 

purchased directly by distribution cooperatives originates from coal-fired generation. 

 

1

 74 Fed. Reg. 18886 (April 24, 2009) 

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National Rural Electric Cooperative Association 

Comments: June 23, 2009 

Eighty percent of the electric power generating plants owned by cooperatives, 

approximately 24,000 MWs, is coal-fired generation. NRECA believes that fossil-fuel 

fired electric generating facilities would be significantly affected by any decisions EPA 

may make regarding regulation of greenhouse gases (“GHGs”) emitted from mobile or 

stationary sources under the existing provisions of the Clean Air Act (“CAA”) or (“Act”). 

Being not-for-profit, cooperatives will be forced to pass along all costs of meeting any new 

requirements to their consumer-owners. Increased costs of electric power, particularly in 

rural areas served by cooperatives, has negative impacts on economic development and 

jobs. Because cooperatives have a disproportionate amount of coal-based generation when 

compared to the electric utility industry as a whole, these negative impacts could be 

disproportionately higher for cooperatives and their consumer-owners. 

NRECA believes that curtailing economic costs is perhaps the most significant issue to 

consider in addressing the nation’s energy and climate change objectives. The nation is 

currently in an already sluggish economy facing a significant and worrisome economic 

downturn of uncertain duration. Most sectors of the economy are facing rising costs and 

lower economic output. It is simply not appropriate to institute a regulatory program at 

this time that would impose even higher energy costs on American businesses and 

consumers. 

As consumer-owned electricity suppliers, cooperatives understand that reliable, 

affordable electricity has been one of the key drivers of economic growth and prosperity 

in this country. That fact must not be forgotten as the agency makes decisions on whether 

and how to regulate GHGs through this and future potential rulemakings. 

Recently, several of the nation’s leading consumer advocates wrote to then Presidentelect Obama to urge him to “give careful consideration to the impact of policies to reduce 

energy consumption and greenhouse gas emission on consumer pocketbooks...” The 

coalition noted that electricity prices have already risen “by about 40 percent since 2002.” 

The coalition of consumer advocates urged that one of the key principles that must be 

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Comments: June 23, 2009 

followed in any effort to address climate change is, “Rigorous adherence to least cost 

principles applied to all customer classes within the electricity industry and all sectors of 

the economy.” NRECA could not agree more and stands ready to work alongside 

consumer groups to help the Administration and Congress craft an energy plan that 

allows the energy sector to affordably meet rising demand while fulfilling its 

responsibility to address climate change. 

NRECA is an active member of the Utility Air Regulatory Group (“UARG”) and fully 

supports the comments submitted by UARG in this rulemaking.2 UARG’s comments 

include a more expansive discussion of many of the issues described below. 

Also, NRECA filed comments in response to EPA’s July 30, 2008, Advanced Notice of 

Proposed Rulemaking Regarding Regulating Greenhouse Gas Emissions Under the 

Clean Air Act, (73 Fed. Reg. 44354).3

 These comments are attached here and should be 

included as part of NRECA’s response to these proceedings. 

NRECA appreciates the opportunity to comment on this important rulemaking and the 

significant issues it raises. 

It Appears that Finalizing the Proposed Endangerment Finding May Be Little More 

Than a Formality

On May 19, less than one month after EPA published the Proposed Endangerment 

Finding, the President announced “a new national policy” to reduce GHG emissions from 

 

2

 UARG is a voluntary, nonprofit group of electric generating companies and organizations and four 

national trade associations (NRECA, the Edison Electric Institute, the American Public Power Association, 

and the National Mining Association). UARG’s purpose is to participate collectively on behalf of its 

members in EPA rulemakings, related litigation, and other Clean Air Act proceedings that affect the 

interests of electric generators. 

3

 See NRECA comments attached dated November 26, 2008 

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all new cars and trucks sold in the U.S4. The President’s new national policy requires the 

promulgation by EPA of GHG emission standards under section 202 of the CAA in 

conjunction with the establishment of the Department of Transportation (“DOT”) of 

comparable national fuel economy standards for vehicles under the Energy Policy and 

Conservation Act. 

The President’s announcement – a major news event that commanded front-page 

headlines and led television news programs throughout the country – establishes a new 

national policy that requires EPA to adopt section 202 GHG standards. Without a final 

affirmative endangerment finding, of course, EPA may not regulate under section 202. 

Thus, the outcome of the present proceeding appears, for all practical purposes, to be 

preordained and the merits of the endangerment issue to be prejudged. 

It appears the only real questions left to EPA concern certain details regarding how, but 

not whether, to control GHG emissions under section 202 of the CAA. These 

circumstances, therefore, seriously undermine EPA’s credibility and its ability to provide 

an objective consideration of comments in response to this proposed rulemaking. 

EPA needs to explain how comments in response to this rulemaking will be given serious 

consideration and not simply ignored as a result of an apparent predetermined outcome in 

this proceeding. 

EPA’s Stated Rationale for an Affirmative Endangerment Finding is Inadequate 

and Fails to Address Critical Issues

The CAA and its endangerment provisions do not call for “regulation for regulation’s 

sake” but for regulation where it can be shown to achieve the objective of preventing 

 

4

 White House Press Release, “President Obama Announces National Fuel Efficiency Policy” (May 19, 

2009). 

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damage. As stated in the 1977 legislative history quoted by EPA itself, the effect of the 

CAA’s endangerment criterion is to assure that regulatory action can effectively prevent 

harm before it occurs.5

The agency has failed to show that the contemplated regulation resulting from an 

affirmative endangerment finding would prevent a substantial part of the danger from 

global climate change at which the regulation ostensibly is aimed. 

Given the importance of this issue, if EPA believes that a basis exists to conclude that 

regulation of GHG emissions from new U.S. motor vehicles would meaningfully mitigate 

the endangerment it proposes to find, then EPA should publish for public comment a 

supplemental notice providing that basis. 

In the Proposed Endangerment Finding, EPA presents information on the contribution to 

total GHG emissions of “all of the section 202(a) source categories,” meaning passenger 

cars, light-duty trucks, motorcycles, buses, and medium/heavy-duty trucks. A meaningful 

assessment of this issue would have to take into account the degree of contribution to the 

asserted endangerment that section 202 regulation actually would address. Only a small 

portion (“new” motor vehicles) of the mobile source categories is to be included. 

Moreover, since publication of the Proposed Endangerment Finding, EPA has explained 

that only a subset of even the new-source category of section 202(a) sources would in 

fact be regulated under section 202(a) as a result of a final endangerment finding.6

 

Furthermore, emission standards obviously will not eliminate all GHG emissions from 

the subset of vehicles that are regulated under those standards. Also, individual 

consumers, businesses, and other vehicle purchasers can be expected to hold on to their 

5

 74 Fed. Reg. 18891 

6

 In the May 22 Joint Rulemaking Notice, EPA states that it intends, based on its anticipated section 

202(a)(1) endangerment finding, to propose GHG emission standards under section 202(a) for “passenger 

cars, light-duty trucks, and medium-duty passenger vehicles (light-duty vehicles) built in model years 2012 

through 2016.” 74 Fed. Reg. 24007 

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Comments: June 23, 2009 

existing vehicles to a greater extent than would otherwise be the case in order to avoid or 

defer paying the increased price tag for new vehicles that must be manufactured, at 

greater cost, to meet more demanding emission and fuel economy standards. 

In sum, the Proposed Endangerment Finding provides no basis for concluding that the 

purpose of the section 202(a)(1) endangerment criterion, preventing danger from global 

climate change, would be served by making an affirmative final endangerment finding. 

EPA’s Technical Support Document (“TSD”) does not Support a Final Finding of 

Endangerment by the Administrator

Exclusion of Adaptation Considerations

Both the TSD and the EPA Administrator have concluded that consideration of the 

effects of adaptation is not appropriate in conducting an endangerment analysis. Thus, 

the agency has determined, as a matter of policy, to exclude a key focus area of the 

climate change research community. 

It is simply unsupportable that adaptation is not relevant to determining whether 

endangerment exists or will exist. The fundamental question that an endangerment analysis 

must seek to answer is what type and extent of harm is likely to occur. This question 

cannot be answered if one does not examine what the actual impacts of climate change are 

likely to be, and that cannot be done while ignoring the role that adaptation will play. 

Further, adaptation assessment is central to the statutory requirements governing EPA’s 

endangerment inquiry, and not merely some peripheral or likely minor consideration that 

the agency may reasonably overlook. On the contrary, the TSD quotes a significant 

conclusion of the U.S. Climate Change Science Program (“CCSP”) indicating that “[t]he 

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United States is certainly capable of adapting to the collective impacts of climate change.”7 

At the very least, it is inappropriate for such a significant policy determination to be made 

by the agency in its preparation of a foundational scientific assessment to be used in 

support of policy decisions. A scientific document should present all of the science 

relevant to whether public health and welfare will be endangered by GHG emissions. 

Commingling GHG and Non-GHG Effects

The Proposed Endangerment Finding includes a number of statements that indicate that the 

Administrator has relied upon the effects of climate change in general to support her 

Proposed Endangerment Finding. For instance, the Administrator states “the analysis was 

not restricted to only those climate and public health or welfare effects which may be 

attributable solely to greenhouse gas emissions from section 202(a) sources under the Act.”8

Examination of the TSD reveals that EPA has, in fact, improperly commingled the effects 

on climate of the six GHGs for which it proposes to find endangerment with the effects of 

all other sources of climate change, anthropogenic and biogenic. Accordingly, the 

analysis contained in the TSD is wholly unsuitable for the task of assessing 

endangerment for the suite of GHGs that is the subject of this action and the 

Administrator’s proposed judgments based on the TSD are, thus, inherently inaccurate. 

Addressing the impacts that may result from climate change in general is not the purpose 

of the TSD, and this information does not provide support for any potential endangerment 

finding. Rather, the purpose of the document is to assess whether anthropogenic GHG 

emissions themselves endanger public health and welfare. This lack of clarity as to the 

scope of climate effects that are the subject of this analysis is problematic. It is 

impossible to determine whether the effects described, and any potential endangerment, 

are the result of anthropogenic emissions of GHGs or climate-related effects that do not 

 

7

 TSD at 69 (quoting CCSP (2008b)) 

8

 74 Fed. Reg. 18894 

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Docket ID No. EPA-HQ-OAR-2009-0171 

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Comments: June 23, 2009 

result from human activities or GHG emissions. Because it is impossible to determine 

based on the analysis contained in the Endangerment TSD what precisely might be the 

ultimate source of any possible endangerment, the document cannot serve as a basis for 

an endangerment finding under the CAA. EPA, therefore, must revise this document to 

address only those effects that are relevant to an endangerment finding as defined by the 

standards contained within the CAA. 

The TSD and the Administrator Rely on Sources of Scientific Information That Do Not 

Adequately Address the Issues Relevant Under the CAA

Review of the TSD and the Proposed Endangerment Finding indicate that the Agency has 

relied almost exclusively upon the Fourth Assessment Report of the Intergovernmental 

Panel on Climate Change (“IPCC”) and the Synthesis and Assessment Products prepared 

by the CCSP.9 

Reliance on the IPCC is problematic because the IPCC Fourth Assessment Report does 

not address U.S.-specific effects in isolation as is ultimately necessary to support an 

endangerment finding. Instead, the IPCC Assessments are devoted primarily to global 

effects and global emissions. Further, EPA’s adoption of the IPCC’s regional analysis of 

North American impacts, including projections for changes in temperature, precipitation, 

and sea level rise, cannot substitute for a U.S.-specific analysis because the IPCC’s 

analysis and EPA’s discussion of that analysis failed to distinguish adequately between 

U.S. and Canadian effects. 

In addition to the scientific imprecision introduced to the endangerment analysis process 

by adoption of general North American IPCC analysis as a proxy for scientific 

information specific to the United States, it is also important to note that the IPCC 

Assessment Reports are not themselves prepared in accordance with the U.S. standards 

for scientific assessments. The IPCC is governed by its own set of principles that 

 

9

 See TSD at ES-1 

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Comments: June 23, 2009 

 

emphasize that approval of the contents of IPCC Assessment Reports is to be performed 

on the basis of consensus among IPCC member governments. 

In addition to the statutory principles found in the CAA, EPA’s Endangerment TSD is also 

subject to the Information Quality Act and its guidelines establishing standards for the 

quality, objectivity, integrity, and utility of information disseminated by federal agencies. 

Adopting scientific conclusions of a body not subject to these requirements and 

“generalizing” such conclusions to stand for propositions that were not intended by their 

originator raises substantial questions as to whether the requirements of the Information 

Quality Act are being met. Indeed, EPA highlights this issue itself when describing the 

process for approving IPCC Assessment Report and the Information Quality Act procedures 

utilized during the review and approval of U.S. CCSP Synthesis and Assessment Products.10 

EPA should, therefore, ensure that it independently concurs with the conclusions presented in 

the IPCC’s Assessment Reports and address the possible consequences of the IPCC’s 

procedures with respect to the conclusions reached by that body. 

Further, the fact that the IPCC and CCSP reports have been prepared under conditions 

and for reasons substantially dissimilar from the standpoint of assessing endangerment to 

U.S. public health and welfare in contemplation of regulation pursuant to the CAA also 

indicate that wholesale reliance on these reports is inappropriate. 

The agency has conducted its own evaluation of specific scientific issues in the past, 

demonstrating that it is capable of doing so and underscoring the propriety of EPA 

conducting its own, independent assessment of the science. The current approach to 

scientific assessment renders the Proposed Endangerment Finding invalid, as it is based 

on information concerning climate change-related effects that are not relevant to U.S. 

interests and that have not been thoroughly evaluated by EPA. 

10 See Endangerment TSD at 3 

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National Rural Electric Cooperative Association 

Comments: June 23, 2009 

If EPA Decides to Finalize the Proposed Endangerment Finding, Regulation of 

Numerous, Previously Unregulated Sources Will Result

Finalization of the Proposed Endangerment Finding would affect more than the new 

motor vehicles whose GHG emissions EPA would be required to regulate under section 

202(a) of the CAA. As the agency recognized in its 2008 Advanced Notice of Proposed 

Rulemaking (“ANPR”)11, “if EPA were to regulate greenhouse gas emissions from motor 

vehicles under the Clean Air Act, then regulation of smaller stationary sources that also 

emit GHGs – such as apartment buildings, large homes, schools, and hospitals – could 

also be triggered” through the Act’s Prevention of Significant Deterioration (“PSD”) 

program.12 

The PSD program requires owners and operators of major stationary sources of air 

pollution to obtain construction permits before building or modifying those sources. 

Although PSD primarily applies to criteria air pollutants for which a national ambient air 

quality standard (“NAAQS”) has been established, PSD can also apply to CAA-regulated 

pollutants for which there is no NAAQS. 

A PSD permit is required for the construction or modification of any major stationary 

source that emits or has the potential to emit 250 tons per year of a regulated pollutant 

(100 tons per year for a source in listed categories, including large fossil fuel-fired steam 

electric plants). Because many sources emit CO2, EPA noted in the ANPR that “many 

types of new small fuel-combusting equipment could become newly subject to the PSD 

program if CO2 becomes a regulated...pollutant.”13 

 

11 Advanced Notice of Proposed Rulemaking entitled “Regulating Greenhouse Gas Emissions under the 

Clean Air Act” (73 Fed. Reg. 44354, July 30, 2008) 

12 73 Fed. Reg. 44355 

13 73 Fed. Reg. 44498 

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National Rural Electric Cooperative Association 

Comments: June 23, 2009 

Additionally, for sources already considered major sources, such as fossil fuel-fired power 

plants, regulation of CO2 likely would create the risk that many more change-related 

activities would arguably be deemed major modifications. EPA, therefore, should consider 

carefully the effects of regulating under the PSD program when it considers finalizing the 

Proposed Endangerment Finding. Also, because of the significantly increased burden on 

administrative agencies and regulated entities that would occur if GHGs became regulated 

pollutants for purposes of the PSD program, EPA should consider not only the nature but 

also the timing of any regulation of GHGs under the CAA. 

Finally, it is not just the PSD program that could lead to the regulation of numerous, 

small sources that are currently unregulated. Regulating GHGs would also result in 

numerous sources needing to obtain a Title V operating permit. Once EPA regulates 

GHGs under the Act, many sources that emit greater than 100 tons per year of one of 

those GHGs, including CO2, would need to apply for a Title V permit within one year of 

becoming subject to Title V requirements. The Title V permit for that source would 

include not only applicable requirements for the GHGs but also general requirements that 

apply to other pollutants regulated under the Act. 

Moreover, to the extent EPA believes it can propose alternatives to ease this regulatory 

burden, it will have to provide in any notice of proposed rulemaking a complete and adequate 

explanation of the authority it believes it has to accomplish this and how its action would not 

conflict with positions previously taken by the agency or the courts in this matter. 

A Final Endangerment Finding for GHGs Under Section 202(a) Would Not Satisfy 

the Criteria Necessary To List GHGs as a Criteria Air Pollutant Under Section 108 

of the Act. 

Should EPA decide to finalize the Endangerment Proposal, that finding would not be 

dispositive with regard to section 108 that governs the identification of criteria air 

pollutants. Section 108 contains language different from that in section 202. Unlike 

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section 202(a), sections 108 and 109 of the CAA authorize listing of a pollutant as a 

criteria air pollutant, and regulation of that pollutant through the National Ambient Air 

Quality Standards (“NAAQS”), for the purpose of addressing any endangerment of the 

public health or welfare that may reasonably be anticipated due to the quantities of the 

pollutant in the ambient air - a relatively limited portion of the atmosphere to which the 

general public has access. 

Thus, before the agency could list any GHGs as criteria air pollutants under section 108 of 

the Act, it would have to examine what the effect is on U.S. public health or welfare due to 

the presence of GHGs in the ambient air in the United States. The Endangerment Proposal 

and TSD do not accomplish this task. Notably, the absence of information regarding the 

effects of GHGs on public health and welfare due to their presence in the U.S. ambient air 

could, in fact, lead the Administrator to conclude that she has no “plans to issue air quality 

criteria” for GHGs – which also is a prerequisite for listing under section 108. 

Additionally, even if EPA decided to regulate GHGs as criteria pollutants, the agency 

would need to develop “criteria documents” that “accurately reflect the latest scientific 

knowledge useful in indicating the kind and extent of all identifiable effects on public 

health or welfare which may be expected from the presence of such pollutant in the 

ambient air, in varying quantities.” CAA section 108(a)(2). Reliance on the IPCC and 

CCSP reports for this purpose, without any independent analyses by EPA of the latest 

relevant scientific knowledge, would not be appropriate and would not comply with the 

requirements of the CAA. 

A Final Endangerment Finding for GHGs Under Section 202(a) Would Not Satisfy 

the Criteria Necessary To Regulate Under Section 115 of the Act.

Section 115 of the CAA allows the EPA Administrator to require states to establish emission 

control requirements where the Administrator “has reason to believe that any air pollutant or 

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Comments: June 23, 2009 

pollutants emitted in the United States cause or contribute to air pollution which may 

reasonably be anticipated to endanger public health or welfare in a foreign country.” If EPA 

finalizes the Endangerment Proposal, such a finding would not satisfy the requirements of 

section 115. Before regulating under section 115, EPA would need to examine issues such as 

whether 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 resulting 

from any EPA decision under section 115 could “prevent or eliminate the endangerment” 

(another section 115 requirement). EPA would also have to show that it has “sufficient 

evidence correlating the endangerment to sources of pollution within a particular State,” a 

criterion EPA and the courts have drawn from section 115. 

Conclusion

NRECA appreciates the opportunity to comment on this important rulemaking that has 

enormous significance for cooperatives. Finalization of the Proposed Endangerment 

Finding for new mobile sources could substantially affect stationary sources as well, 

including power plants owned by rural electric cooperatives. 

Unless legislation is passed by Congress in the near-term and that legislation addresses 

how GHG emission reductions are to be achieved, new requirements for reducing GHG 

emissions will almost assuredly be put in place under the existing provisions of the CAA. 

As described in the attached comments NRECA filed in response to EPA’s July 30, 2008, 

ANPR, the result would be a complicated, time-consuming and, likely, convoluted set of 

regulations that would largely pre-empt or overlay existing programs. 

As stated above, being not-for-profit, cooperatives will be forced to pass along all costs of 

meeting any new requirements for controlling GHG emissions to their consumer-owners. 

Increased costs of electric energy, particularly in the rural areas served by rural electric 

cooperatives, has negative impacts on economic development and jobs. With the nation 

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Comments: June 23, 2009 

currently in an already sluggish economy, NRECA believes that curtailing economic costs 

is a very important, if not the most significant, issue to be considered when addressing the 

nation’s energy and climate change objectives. 

NRECA is concerned that EPA has predetermined the outcome of this rulemaking and 

will finalize its Proposed Endangerment Finding without adequately addressing the many 

critical issues described above. While NRECA believes addressing climate change is 

necessary, we also strongly believe that it must be done through a careful and 

comprehensive analysis of all the relevant factors involved and the agency must develop 

a firm basis on which to support its final determination. 

EPA’s Proposed Endangerment Finding provides no basis for concluding that the purpose 

of the section 202(a)(1) endangerment criterion, preventing danger from global climate 

change, would be served by making an affirmative final endangerment finding. 

Furthermore, the agency’s Technical Support Document does not support an affirmative 

final endangerment finding. It fails to consider the effects of adaptation that will play a 

role in determining whether endangerment exists or will exist, commingles GHG and 

non-GHG effects in assessing endangerment, and relies on sources of scientific 

information that do not adequately address the issues relevant under the CAA. 

Also, finalizing the proposed endangerment finding would affect more than the motor 

vehicles whose GHG emissions EPA would be required to regulate under the section 

202(a) of the CAA. As EPA recognized in its 2008 ANPR, regulating GHGs from motor 

vehicles could also trigger the regulation of numerous smaller stationary sources. If the 

agency believes it can ease this regulatory burden, it must provide a complete and 

adequate explanation of the authority it believes it has to accomplish this objective. 

Finally, an affirmative endangerment finding for GHGs under section 202(a) would not 

satisfy the criteria necessary to regulate under sections 108 or 115 of the Act. Before a final 

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Comments: June 23, 2009 

endangerment finding could be reached under these sections, EPA would need to conduct 

independent analysis and meet other provisions of the Act as further described above. 

NRECA would be happy to answer any questions EPA may have regarding these 

comments or provide any additional information the agency may desire. 

U:\My Documents\

Global Warming\CAA A

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