Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 66496-66546 [E9-29537]

Download as PDF 66496 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations Ave., NW., Washington, DC 20460; telephone number: (202) 343–9927; fax number: (202) 343–2202; e-mail address: ghgendangerment@epa.gov. For additional information regarding these Findings, please go to the Web site https://www.epa.gov/climatechange/ endangerment.html. SUPPLEMENTARY INFORMATION: ENVIRONMENTAL PROTECTION AGENCY 40 CFR Chapter I [EPA–HQ–OAR–2009–0171; FRL–9091–8] RIN 2060–ZA14 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act erowe on DSK5CLS3C1PROD with RULES4 AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Administrator finds that six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations. The Administrator also finds that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a). These Findings are based on careful consideration of the full weight of scientific evidence and a thorough review of numerous public comments received on the Proposed Findings published April 24, 2009. DATES: These Findings are effective on January 14, 2010. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2009–0171. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at EPA’s Docket Center, Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Air Docket is (202) 566–1742. FOR FURTHER INFORMATION CONTACT: Jeremy Martinich, Climate Change Division, Office of Atmospheric Programs (MC–6207J), Environmental Protection Agency, 1200 Pennsylvania VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 Judicial Review Under CAA section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by February 16, 2010. Under CAA section 307(d)(7)(B), only an objection to this final action that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us to convene a proceeding for reconsideration, ‘‘ ‘[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.’ ’’ Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20004, with a copy to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document. ACUS Administrative Conference of the United States ANPR Advance Notice of Proposed Rulemaking APA Administrative Procedure Act CAA Clean Air Act CAFE Corporate Average Fuel Economy CAIT Climate Analysis Indicators Tool CASAC Clean Air Scientific Advisory Committee CBI Confidential Business Information CCSP Climate Change Science Program CFCs chlorofluorocarbons CFR Code of Federal Regulations CH4 methane CO2 carbon dioxide CO2e CO2-equivalent CRU Climate Research Unit PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 DOT U.S. Department of Transportation EO Executive Order EPA U.S. Environmental Protection Agency FR Federal Register GHG greenhouse gas GWP global warming potential HadCRUT Hadley Centre/Climate Research Unit (CRU) temperature record HCFCs hydrochlorofluorocarbons HFCs hydrofluorocarbons IA Interim Assessment report IPCC Intergovernmental Panel on Climate Change MPG miles per gallon MWP Medieval Warm Period N2O nitrous oxide NAAQS National Ambient Air Quality Standards NAICS North American Industry Classification System NASA National Aeronautics and Space Administration NF3 nitrogen trifluoride NHTSA National Highway Traffic Safety Administration NOAA National Oceanic and Atmospheric Administration NOI Notice of Intent NOX nitrogen oxides NRC National Research Council NSPS new source performance standards NTTAA National Technology Transfer and Advancement Act of 1995 OMB Office of Management and Budget PFCs perfluorocarbons PM particulate matter PSD Prevention of Significant Deterioration RFA Regulatory Flexibility Act SF6 sulfur hexafluoride SIP State Implementation Plan TSD technical support document U.S. United States UMRA Unfunded Mandates Reform Act of 1995 UNFCCC United Nations Framework Convention on Climate Change USGCRP U.S. Global Climate Research Program VOC volatile organic compound(s) WCI Western Climate Initiative WRI World Resources Institute TABLE OF CONTENTS I. Introduction A. Overview B. Background Information Helpful To Understand These Findings 1. Greenhouse Gases and Transportation Sources Under CAA Section 202(a) 2. Joint EPA and Department of Transportation Proposed Greenhouse Gas Rule C. Public Involvement 1. EPA’s Initial Work on Endangerment 2. Public Involvement Since the April 2009 Proposed Endangerment Finding 3. Issues Raised Regarding the Rulemaking Process II. Legal Framework for This Action A. Section 202(a) of the CAA— Endangerment and Cause or Contribute 1. The Statutory Framework 2. Summary of Response to Key Legal Comments on the Interpretation of the CAA Section 202(a) Endangerment and Cause or Contribute Test E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations B. Air Pollutant, Public Health and Welfare III. EPA’s Approach for Evaluating the Evidence Before It A. The Science on Which the Decisions Are Based B. The Law on Which the Decisions Are Based C. Adaptation and Mitigation D. Geographic Scope of Impacts E. Temporal Scope of Impacts F. Impacts of Potential Future Regulations and Processes that Generate Greenhouse Gas Emissions IV. The Administrator’s Finding That Emissions of Greenhouse Gases Endanger Public Health and Welfare A. The Air Pollution Consists of Six Key Greenhouse Gases 1. Common Physical Properties of the Six Greenhouse Gases 2. Evidence That the Six Greenhouse Gases Are the Primary Driver of Current and Projected Climate Change 3. The Six Greenhouse Gases Are Currently the Common Focus of the Climate Change Science and Policy Communities 4. Defining Air Pollution as the Aggregate Group of Six Greenhouse Gases Is Consistent With Evaluation of Risks and Impacts Due to Human-Induced Climate Change 5. Defining the Air Pollution as the Aggregate Group of Six Greenhouse Gases Is Consistent With Past EPA Practice 6. Other Climate Forcers Not Being Included in the Definition of Air Pollution for This Finding 7. Summary of Key Comments on Definition of Air Pollution B. The Air Pollution Is Reasonably Anticipated To Endanger Both Public Health and Welfare 1. The Air Pollution Is Reasonably Anticipated To Endanger Public Health 2. The Air Pollution Is Reasonably Anticipated To Endanger Public Welfare V. The Administrator’s Finding That Greenhouse Gases From CAA Section 202(a) Sources Cause or Contribute to the Endangerment of Public Health and Welfare A. The Administrator’s Definition of the ‘‘Air Pollutant’’ B. The Administrator’s Finding Whether Emissions of the Air Pollutant From Section 202(a) Source Categories Cause or Contribute to the Air Pollution That May Be Reasonably Anticipated To Endanger Public Health and Welfare C. Response to Key Comments on the Administrator’s Cause or Contribute Finding 1. The Administrator Reasonably Defined the ‘‘Air Pollutant’’ for the Cause or Contribute Analysis 2. The Administrator’s Cause or Contribute Analysis Was Reasonable VI. Statutory and Executive Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Introduction A. Overview Pursuant to CAA section 202(a), the Administrator finds that greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare. Specifically, the Administrator is defining the ‘‘air pollution’’ referred to in CAA section 202(a) to be the mix of six long-lived and directly-emitted greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). In this document, these six greenhouse gases are referred to as ‘‘well-mixed greenhouse gases’’ in this document (with more precise meanings of ‘‘long lived’’ and ‘‘well mixed’’ provided in Section IV.A). The Administrator has determined that the body of scientific evidence compellingly supports this finding. The major assessments by the U.S. Global Climate Research Program (USGCRP), the Intergovernmental Panel on Climate Change (IPCC), and the National Research Council (NRC) serve as the primary scientific basis supporting the Administrator’s endangerment finding.1 The Administrator reached her determination by considering both observed and projected effects of greenhouse gases in the atmosphere, their effect on climate, and the public health and welfare risks and impacts associated with such climate change. The Administrator’s assessment focused on public health and public welfare impacts within the United States. She also examined the evidence with respect to impacts in other world regions, and she concluded that these impacts strengthen the case for endangerment to public health and welfare because 1 Section III of these Findings discusses the science on which these Findings are based. In addition, the Technical Support Document (TSD) accompanying these Findings summarizes the major assessments from the USGCRP, IPCC, and NRC. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 66497 impacts in other world regions can in turn adversely affect the United States. The Administrator recognizes that human-induced climate change has the potential to be far-reaching and multidimensional, and in light of existing knowledge, that not all risks and potential impacts can be quantified or characterized with uniform metrics. There is variety not only in the nature and potential magnitude of risks and impacts, but also in our ability to characterize, quantify and project such impacts into the future. The Administrator is using her judgment, based on existing science, to weigh the threat for each of the identifiable risks, to weigh the potential benefits where relevant, and ultimately to assess whether these risks and effects, when viewed in total, endanger public health or welfare. The Administrator has considered how elevated concentrations of the wellmixed greenhouse gases and associated climate change affect public health by evaluating the risks associated with changes in air quality, increases in temperatures, changes in extreme weather events, increases in food- and water-borne pathogens, and changes in aeroallergens. The evidence concerning adverse air quality impacts provides strong and clear support for an endangerment finding. Increases in ambient ozone are expected to occur over broad areas of the country, and they are expected to increase serious adverse health effects in large population areas that are and may continue to be in nonattainment. The evaluation of the potential risks associated with increases in ozone in attainment areas also supports such a finding. The impact on mortality and morbidity associated with increases in average temperatures, which increase the likelihood of heat waves, also provides support for a public health endangerment finding. There are uncertainties over the net health impacts of a temperature increase due to decreases in cold-related mortality, but some recent evidence suggests that the net impact on mortality is more likely to be adverse, in a context where heat is already the leading cause of weatherrelated deaths in the United States. The evidence concerning how humaninduced climate change may alter extreme weather events also clearly supports a finding of endangerment, given the serious adverse impacts that can result from such events and the increase in risk, even if small, of the occurrence and intensity of events such as hurricanes and floods. Additionally, public health is expected to be E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66498 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations adversely affected by an increase in the severity of coastal storm events due to rising sea levels. There is some evidence that elevated carbon dioxide concentrations and climate changes can lead to changes in aeroallergens that could increase the potential for allergenic illnesses. The evidence on pathogen borne disease vectors provides directional support for an endangerment finding. The Administrator acknowledges the many uncertainties in these areas. Although these adverse effects provide some support for an endangerment finding, the Administrator is not placing primary weight on these factors. Finally, the Administrator places weight on the fact that certain groups, including children, the elderly, and the poor, are most vulnerable to these climate-related health effects. The Administrator has considered how elevated concentrations of the wellmixed greenhouse gases and associated climate change affect public welfare by evaluating numerous and far-ranging risks to food production and agriculture, forestry, water resources, sea level rise and coastal areas, energy, infrastructure, and settlements, and ecosystems and wildlife. For each of these sectors, the evidence provides support for a finding of endangerment to public welfare. The evidence concerning adverse impacts in the areas of water resources and sea level rise and coastal areas provides the clearest and strongest support for an endangerment finding, both for current and future generations. Strong support is also found in the evidence concerning infrastructure and settlements, as well ecosystems and wildlife. Across the sectors, the potential serious adverse impacts of extreme events, such as wildfires, flooding, drought, and extreme weather conditions, provide strong support for such a finding. Water resources across large areas of the country are at serious risk from climate change, with effects on water supplies, water quality, and adverse effects from extreme events such as floods and droughts. Even areas of the country where an increase in water flow is projected could face water resource problems from the supply and water quality problems associated with temperature increases and precipitation variability, as well as the increased risk of serious adverse effects from extreme events, such as floods and drought. The severity of risks and impacts is likely to increase over time with accumulating greenhouse gas concentrations and associated temperature increases and precipitation changes. Overall, the evidence on risk of adverse impacts for coastal areas VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 provides clear support for a finding that greenhouse gas air pollution endangers the welfare of current and future generations. The most serious potential adverse effects are the increased risk of storm surge and flooding in coastal areas from sea level rise and more intense storms. Observed sea level rise is already increasing the risk of storm surge and flooding in some coastal areas. The conclusion in the assessment literature that there is the potential for hurricanes to become more intense (and even some evidence that Atlantic hurricanes have already become more intense) reinforces the judgment that coastal communities are now endangered by human-induced climate change, and may face substantially greater risk in the future. Even if there is a low probability of raising the destructive power of hurricanes, this threat is enough to support a finding that coastal communities are endangered by greenhouse gas air pollution. In addition, coastal areas face other adverse impacts from sea level rise such as land loss due to inundation, erosion, wetland submergence, and habitat loss. The increased risk associated with these adverse impacts also endangers public welfare, with an increasing risk of greater adverse impacts in the future. Strong support for an endangerment finding is also found in the evidence concerning energy, infrastructure, and settlements, as well ecosystems and wildlife. While the impacts on net energy demand may be viewed as generally neutral for purposes of making an endangerment determination, climate change is expected to result in an increase in electricity production, especially supply for peak demand. This may be exacerbated by the potential for adverse impacts from climate change on hydropower resources as well as the potential risk of serious adverse effects on energy infrastructure from extreme events. Changes in extreme weather events threaten energy, transportation, and water resource infrastructure. Vulnerabilities of industry, infrastructure, and settlements to climate change are generally greater in high-risk locations, particularly coastal and riverine areas, and areas whose economies are closely linked with climate-sensitive resources. Climate change will likely interact with and possibly exacerbate ongoing environmental change and environmental pressures in settlements, particularly in Alaska where indigenous communities are facing major environmental and cultural impacts on their historic lifestyles. Over the 21st PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 century, changes in climate will cause some species to shift north and to higher elevations and fundamentally rearrange U.S. ecosystems. Differential capacities for range shifts and constraints from development, habitat fragmentation, invasive species, and broken ecological connections will likely alter ecosystem structure, function, and services, leading to predominantly negative consequences for biodiversity and the provision of ecosystem goods and services. There is a potential for a net benefit in the near term 2 for certain crops, but there is significant uncertainty about whether this benefit will be achieved given the various potential adverse impacts of climate change on crop yield, such as the increasing risk of extreme weather events. Other aspects of this sector may be adversely affected by climate change, including livestock management and irrigation requirements, and there is a risk of adverse effect on a large segment of the total crop market. For the near term, the concern over the potential for adverse effects in certain parts of the agriculture sector appears generally comparable to the potential for benefits for certain crops. However, The body of evidence points towards increasing risk of net adverse impacts on U.S. food production and agriculture over time, with the potential for significant disruptions and crop failure in the future. For the near term, the Administrator finds the beneficial impact on forest growth and productivity in certain parts of the country from elevated carbon dioxide concentrations and temperature increases to date is offset by the clear risk from the observed increases in wildfires, combined with risks from the spread of destructive pests and disease. For the longer term, the risk from adverse effects increases over time, such that overall climate change presents serious adverse risks for forest productivity. There is compelling reason to find that the support for a positive endangerment finding increases as one considers expected future conditions where temperatures continue to rise. Looking across all of the sectors discussed above, the evidence provides compelling support for finding that greenhouse gas air pollution endangers the public welfare of both current and 2 The temporal scope of impacts is discussed in more detail in Section III.C. The phrase ‘‘near term’’ as used in this document generally refers to the current time period from and the next few decades. The phrase ‘‘long term’’ generally refers to a time frame extending beyond that to approximately the middle to the end of this century. E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations future generations. The risk and the severity of adverse impacts on public welfare are expected to increase over time. The Administrator also finds that emissions of well-mixed greenhouse gases from the transportation sources covered under CAA section 202(a) 3 contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare. The Administrator is defining the air pollutant that contributes to climate change as the aggregate group of the well-mixed greenhouse gases. The definition of air pollutant used by the Administrator is based on the similar attributes of these substances. These attributes include the fact that they are sufficiently long-lived to be well mixed globally in the atmosphere, that they are directly emitted, and that they exert a climate warming effect by trapping outgoing, infrared heat that would otherwise escape to space, and that they are the focus of climate change science and policy. In order to determine if emissions of the well-mixed greenhouse gases from CAA section 202(a) source categories contribute to the air pollution that endangers public health and welfare, the Administrator compared the emissions from these CAA section 202(a) source categories to total global and total U.S. greenhouse gas emissions, finding that these source categories are responsible for about 4 percent of total global well-mixed greenhouse gas emissions and just over 23 percent of total U.S. well-mixed greenhouse gas emissions. The Administrator found that these comparisons, independently and together, clearly establish that these emissions contribute to greenhouse gas concentrations. For example, the emissions of well-mixed greenhouse gases from CAA section 202(a) sources are larger in magnitude than the total well-mixed greenhouse gas emissions from every other individual nation with the exception of China, Russia, and India, and are the second largest emitter within the United States behind the electricity generating sector. As the Supreme Court noted, ‘‘[j]udged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, * * * to global warming.’’ Massachusetts v. EPA, 549 U.S. 497, 525 (2007). 3 Section 202(a) source categories include passenger cars, heavy-, medium and light-duty trucks, motorcycles, and buses. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 The Administrator’s findings are in response to the Supreme Court’s decision in Massachusetts v. EPA. That case involved a 1999 petition submitted by the International Center for Technology Assessment and 18 other environmental and renewable energy industry organizations requesting that EPA issue standards under CAA section 202(a) for the emissions of carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons from new motor vehicles and engines. The Administrator’s findings are in response to this petition and are for purposes of CAA section 202(a). B. Background Information Helpful To Understand These Findings This section provides some basic information regarding greenhouse gases and the CAA section 202(a) source categories, as well as the ongoing jointrulemaking on greenhouse gases by EPA and the Department of Transportation. Additional technical and legal background, including a summary of the Supreme Court’s Massachusetts v. EPA decision, can be found in the Proposed Endangerment and Contribution Findings (74 FR 18886, April 24, 2009). 1. Greenhouse Gases and Transportation Sources Under CAA Section 202(a) Greenhouse gases are naturally present in the atmosphere and are also emitted by human activities. Greenhouse gases trap the Earth’s heat that would otherwise escape from the atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life. Human activities are intensifying the naturallyoccurring greenhouse effect by adding greenhouse gases to the atmosphere. The primary greenhouse gases of concern that are directly emitted by human activities include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. Other pollutants (such as aerosols) and other human activities, such as land use changes that alter the reflectivity of the Earth’s surface, also cause climatic warming and cooling effects. In these Findings, the term ‘‘climate change’’ generally refers to the global warming effect plus other associated changes (e.g., precipitation effects, sea level rise, changes in the frequency and severity of extreme weather events) being induced by human activities, including activities that emit greenhouse gases. Natural causes also, contribute to climate change and climatic changes have occurred throughout the Earth’s history. The concern now, however, is that the changes taking place in our atmosphere PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 66499 as a result of the well-documented buildup of greenhouse gases due to human activities are changing the climate at a pace and in a way that threatens human health, society, and the natural environment. Further detail on the state of climate change science can be found in Section III of these Findings as well as the technical support document (TSD) that accompanies this action (www.epa.gov/climatechange/ endangerment.html). The transportation sector is a major source of greenhouse gas emissions both in the United States and in the rest of the world. The transportation sources covered under CAA section 202(a)—the section of the CAA under which these Findings occur—include passenger cars, light- and heavy-duty trucks, buses, and motorcycles. These transportation sources emit four key greenhouse gases: carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons. Together, these transportation sources are responsible for 23 percent of total annual U.S. greenhouse gas emissions, making this source the second largest in the United States behind electricity generation.4 Further discussion of the emissions data supporting the Administrator’s cause or contribute finding can be found in Section V of these Findings, and the detailed greenhouse gas emissions data for section 202(a) source categories can be found in Appendix B of EPA’s TSD. 2. Joint EPA and Department of Transportation Proposed Greenhouse Gas Rule On September 15, 2009, EPA and the Department of Transportation’s National Highway Safety Administration (NHTSA) proposed a National Program that would dramatically reduce greenhouse gas emissions and improve fuel economy for new cars and trucks sold in the United States. The combined EPA and NHTSA standards that make up this proposed National Program would apply to passenger cars, lightduty trucks, and medium-duty passenger vehicles, covering model years 2012 through 2016. They proposed to require these vehicles to meet an estimated combined average 4 The units for greenhouse gas emissions in these findings are provided in carbon dioxide equivalent units, where carbon dioxide is the reference gas and every other greenhouse gas is converted to its carbon dioxide equivalent by using the 100-year global warming potential (as estimated by the Intergovernmental Panel on Climate Change (IPCC). assigned to each gas. The reference gas used is CO2, and therefore Global Warming Potential (GWP)weighted emissions are measured in teragrams of CO2 equivalent (Tg CO2 eq.). In accordance with UNFCCC reporting procedures, the United States quantifies greenhouse gas emissions using the 100year time frame values for GWPs established in the IPCC Second Assessment Report. E:\FR\FM\15DER4.SGM 15DER4 66500 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations emissions level of 250 grams of carbon dioxide per mile, equivalent to 35.5 miles per gallon (MPG) if the automobile industry were to meet this carbon dioxide level solely through fuel economy improvements. Together, these proposed standards would cut carbon dioxide emissions by an estimated 950 million metric tons and 1.8 billion barrels of oil over the lifetime of the vehicles sold under the program (model years 2012–2016). The proposed rulemaking can be viewed at (74 FR 49454, September 28, 2009). C. Public Involvement In response to the Supreme Court’s decision, EPA has been examining the scientific and technical basis for the endangerment and cause or contribute decisions under CAA section 202(a) since 2007. The science informing the decision-making process has grown stronger since our work began. EPA’s approach to evaluating the science, including comments submitted during the public comment period, is further discussed in Section III.A of these Findings. Public review and comment has always been a major component of EPA’s process. erowe on DSK5CLS3C1PROD with RULES4 1. EPA’s Initial Work on Endangerment As part of the Advance Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions under the Clean Air Act (73 FR 44353) published in July 2008, EPA provided a thorough discussion of the issues and options pertaining to endangerment and cause or contribute findings under the CAA. The Agency also issued a TSD providing an overview of all the major scientific assessments available at the time and emission inventory data relevant to the contribution finding (Docket ID No. EPA–HQ–OAR–2008–0318). The comment period for that Advance Notice was 120 days, and it provided an opportunity for EPA to hear from the public with regard to the issues involved in endangerment and cause or contribute findings as well as the supporting science. EPA received, reviewed and considered numerous comments at that time and this public input was reflected in the Findings that the Administrator proposed in April 2009. In addition, many comments were received on the TSD released with the Advance Notice and reflected in revisions to the TSD released in April 2009 to accompany the Administrator’s proposal. All public comments on the Advance Notice are contained in the public docket for this action (Docket ID No. EPA–HQ–OAR–2008–0318) accessible through www.regulations.gov. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 2. Public Involvement Since the April 2009 Proposed Endangerment Finding The Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases (Proposed Findings) was published on April 24, 2009 (74 FR 18886). The Administrator’s proposal was subject to a 60-day public comment period, which ended June 23, 2009, and also included two public hearings. Over 380,000 public comments were received on the Administrator’s proposed endangerment and cause or contribute findings, including comments on the elements of the Administrator’s April 2009 proposal, the legal issues pertaining to the Administrator’s decisions, and the underlying TSD containing the scientific and technical information. A majority of the comments (approximately 370,000) were the result of mass mail campaigns, which are defined as groups of comments that are identical or very similar in form and content. Overall, about two-thirds of the mass-mail comments received are supportive of the Findings and generally encouraged the Administrator both to make a positive endangerment determination and implement greenhouse gas emission regulations. Of the mass mail campaigns in disagreement with the Proposed Findings most either oppose the proposal on economic grounds (e.g., due to concern for regulatory measures following an endangerment finding) or take issue with the proposed finding that atmospheric greenhouse gas concentrations endanger public health and welfare. Please note that for mass mailer campaigns, a representative copy of the comment is posted in the public docket for this Action (Docket ID No. EPA–HQ–OAR–2009–0171) at www.regulations.gov. Approximately 11,000 other public comments were received. These comments raised a variety of issues related to the scientific and technical information EPA relied upon in making the Proposed Findings, legal and procedural issues, the content of the Proposed Findings, and the implications of the Proposed Findings. In light of the very large number of comments received and the significant overlap between many comments, EPA has not responded to each comment individually. Rather, EPA has summarized and provided responses to each significant argument, assertion and question contained within the totality of the comments. EPA’s responses to some of the most significant comments are provided in these Findings. Responses to all significant issues raised by the PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 comments are contained in the 11 volumes of the Response to Comments document, organized by subject area (found in docket EPA–HQ–OAR–2009– 0171). 3. Issues Raised Regarding the Rulemaking Process EPA received numerous comments on process-related issues, including comments urging the Administrator to delay issuing the final findings, arguing that it was improper for the Administrator to sever the endangerment and cause or contribute findings from the attendant section 202(a) standards, arguing the final decision was preordained by the President’s May vehicle announcement, and questioning the adequacy of the comment period. Summaries of key comments and EPA’s responses are discussed in this section. Additional and more detailed responses can be found in the Response to Comments document, Volume 11. As noted in the Response to Comments document, EPA also received comments supporting the overall process. a. It Is Reasonable for the Administrator To Issue the Endangerment and Cause or Contribute Findings Now Though the Supreme Court did not establish a specific deadline for EPA to act, more than two and a half years have passed since the remand from the Supreme Court, and it has been 10 years since EPA received the original petition requesting that EPA regulate greenhouse gas emissions from new motor vehicles. EPA has a responsibility to respond to the Supreme Court’s decision and to fulfill its obligations under current law, and there is good reason to act now given the urgency of the threat of climate change and the compelling scientific evidence. Many commenters urge EPA to delay making final findings for a variety of reasons. They note that the Supreme Court did not establish a deadline for EPA to act on remand. Commenters also argue that the Supreme Court’s decision does not require that EPA make a final endangerment finding, and thus that EPA has discretionary power and may decline to issue an endangerment finding, not only if the science is too uncertain, but also if EPA can provide ‘‘some reasonable explanation’’ for exercising its discretion. These commenters interpret the Supreme Court decision not as rejecting all policy reasons for declining to undertake an endangerment finding, but rather as dismissing solely the policy reasons EPA set forth in 2003. Some commenters cite language in the E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations Supreme Court decision regarding EPA’s discretion regarding ‘‘the manner, timing, content, and coordination of its regulations,’’ and the Court’s declining to rule on ‘‘whether policy concerns can inform EPA’s actions in the event that it makes’’ a CAA section 202(a) finding to support their position. Commenters then suggest a variety of policy reasons that EPA can and should make to support a decision not to undertake a finding of endangerment under CAA section 202(a)(1). For example, they argue that a finding of endangerment would trigger several other regulatory programs—such as the Prevention of Significant Deterioration (PSD) provisions—that would impose an unreasonable burden on the economy and government, without providing a benefit to the environment. Some commenters contend that EPA should defer issuing a final endangerment finding while Congress considers legislation. Many commenters note the ongoing international discussions regarding climate change and state their belief that unilateral EPA action would interfere with those negotiations. Others suggest deferring the EPA portion of the joint U.S. Department of Transportation (DOT)/EPA rulemaking because they argue that the new Corporate Average Fuel Economy (CAFE) standards will effectively result in lower greenhouse gas emissions from new motor vehicles, while avoiding the inevitable problems and concerns of regulating greenhouse gases under the CAA. Other commenters argue that the endangerment determination has to be made on the basis of scientific considerations only. These commenters state that the Court was clear that ‘‘[t]he statutory question is whether sufficient information exists to make an endangerment finding,’’ and thus, only if ‘‘the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming,’’ may EPA avoid making a positive or negative endangerment finding. Many commenters urge EPA to take action quickly. They note that it has been 10 years since the original petition requesting that EPA regulate greenhouse gas emissions from motor vehicles was submitted to EPA. They argue that climate change is a serious problem that requires immediate action. EPA agrees with the commenters who argue that the Supreme Court decision held that EPA is limited to consideration of science when undertaking an endangerment finding, and that we cannot delay issuing a finding due to policy concerns if the VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 science is sufficiently certain (as it is here). The Supreme Court stated that ‘‘EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do’’ 549 U.S. at 533. Some commenters point to this last provision, arguing that the policy reasons they provide are a ‘‘reasonable explanation’’ for not moving forward at this time. However, this ignores other language in the decision that clearly indicates that the Court interprets the statute to allow for the consideration only of science. For example, in rejecting the policy concerns expressed by EPA in its 2003 denial of the rulemaking petition, the Court noted that ‘‘it is evident [the policy considerations] have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment’’ Id. at 533–34 (emphasis added). Moreover, the Court also held that ‘‘[t]he statutory question is whether sufficient information exists to make an endangerment finding’’ Id. at 534. Taken as a whole, the Supreme Court’s decision clearly indicates that policy reasons do not justify the Administrator avoiding taking further action on the question here. We also note that the language many commenters quoted from the Supreme Court decision about EPA’s discretion regarding the manner, timing and content of Agency actions, and the ability to consider policy concerns, relate to the motor vehicle standards required in the event that EPA makes a positive endangerment finding, and not the finding itself. EPA has long taken the position that it does have such discretion in the standard-setting step under CAA section 202(a). b. The Administrator Reasonably Proceeded With the Endangerment and Cause or Contribute Findings Separate From the CAA Section 202(a) Standard Rulemaking As discussed in the Proposed Findings, typically endangerment and cause or contribute findings have been proposed concurrently with proposed standards under various sections of the CAA, including CAA section 202(a). EPA received numerous comments on its decision to propose the endangerment and cause or contribute findings separate from any standards under CAA section 202(a). Commenters argue that EPA has no authority to issue an endangerment PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 66501 determination under CAA section 202(a) separate and apart from the rulemaking to establish emissions standards under CAA section 202(a). According to these commenters, CAA section 202(a) provides only one reason to issue an endangerment determination, and that is as the basis for promulgating emissions standards for new motor vehicles; thus, it does not authorize such a stand-alone endangerment finding, and EPA may not create its own procedural rules completely divorced from the statutory text. They continue by stating that while CAA section 202(a) says EPA may issue emissions standards conditioned on such a finding, it does not say EPA may first issue an endangerment determination and then issue emissions standards. In addition, they contend, the endangerment proposal and the emissions standards proposal need to be issued together so commenters can fully understand the implications of the endangerment determination. Failure to do so, they argue, deprives the commenters of the opportunity to assess the regulations that will presumably follow from an endangerment finding. They also argue that the expected overlap between reductions in emissions of greenhouse gases from CAA section 202(a) standards issued by EPA and CAFE standards issued by DOT calls into question the basis for the CAA section 202(a) standards and the related endangerment finding, and that EPA is improperly motivated by an attempt to trigger a cascade of regulations under the CAA and/or to promote legislation by Congress. EPA disagrees with the commenters’ claims and arguments. The text of CAA section 202(a) is silent on this issue. It does not specify the timing of an endangerment finding, other than to be clear that emissions standards may not be issued unless such a determination has been made. EPA is exercising the procedural discretion that is provided by CAA section 202(a)’s lack of specific direction. The text of CAA section 202(a) envisions two separate actions by the Administrator: (1) A determination on whether emissions from classes or categories of new motor vehicles cause or contribute to air pollution that may reasonably be anticipated to endanger, and (2) a separate decision on issuance of appropriate emissions standards for such classes or categories. The procedure followed in this rulemaking, and the companion rulemaking involving emissions standards for light duty motor vehicles, is consistent with CAA section 202(a). EPA will issue final emissions standards for new motor E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66502 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations vehicles only if affirmative findings are made concerning contribution and endangerment, and such emissions standards will not be finalized prior to making any such determinations. While it would also be consistent with CAA section 202(a) to issue the greenhouse gas endangerment and contribution findings and emissions standards for new light-duty vehicles in the same rulemaking, e.g., a single proposal covering them and a single final rule covering them, nothing in CAA section 202(a) requires such a procedural approach, and nothing in the approach taken in this case violates the text of CAA section 202(a). Since Congress was silent on this issue, and more than one procedural approach may accomplish the requirements of CAA section 202(a), EPA has the discretion to use the approach considered appropriate in this case. Once the final affirmative contribution and endangerment findings are made, EPA has the authority to issue the final emissions standards for new light-duty motor vehicles; however, as the Supreme Court has noted, the agency has ‘significant latitude as to the manner, timing, [and] content * * * of its regulations . * * *’ Massachusetts v. EPA, 549 U.S. at 533. That includes the discretion to issue them in a separate rulemaking. Commenters’ argument would also lead to the conclusion that EPA could not make an endangerment finding for the entire category of new motor vehicles, as it is doing here, unless EPA also conducted a rulemaking that set emissions standards for all the classes and categories of new motor vehicles at the same time. This narrow procedural limitation would improperly remove discretion that CAA section 202(a) provides to EPA. EPA has the discretion under CAA section 202(a) to consider classes or categories of new motor vehicles separately or together in making a contribution and endangerment determination. This discretion would be removed under commenters’ interpretation, by limiting this to only those cases in which EPA was also ready to issue emissions standards for all of the classes or categories covered by the endangerment finding. However, nothing in the text of CAA section 202(a) places such a limit on EPA’s discretion in determining how to group classes or categories of new motor vehicles for purposes of the contribution and endangerment findings. This limitation would not be appropriate, because the issues of contribution and endangerment are separate and distinct from the issues of setting emissions standards. EPA, in this case, is fully VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 prepared to go forward with the contribution and endangerment determination, while it is not ready to proceed with rulemaking for each and every category of new motor vehicles in the first rulemaking to set emissions standards. Section 202(a) of the CAA provides EPA discretion with regard to when and how it conducts its rulemakings to make contribution and endangerment findings, and to set emissions standards, and the text of CAA section 202(a) does not support commenters attempt to limit such discretion. Concerns have been raised that the failure to issue the proposed endangerment finding and the proposed emissions standard together preclude commenters from assessing and considering the implications of the endangerment finding and the regulations that would likely flow from such a finding. However, commenters have failed to explain how this interferes in any way with their ability to comment on the endangerment finding. In fact it does not interfere, because the two proposals address separate and distinct issues. The endangerment finding concerns the contribution of new motor vehicles to air pollution and the effect of that air pollution on public health or welfare. The emissions standards, which have been proposed (74 FR 49454, September 28, 2009), concern the appropriate regulatory emissions standards if affirmative findings are made on contribution and endangerment. These two proposals address different issues. While commenters have the opportunity to comment on the proposed emissions standards in that rulemaking, they have not shown, and cannot show, that they need to have the emissions standards proposal before them in order to provide relevant comments on the proposed contribution or endangerment findings. Further discussion of this issue can be found in Section II of these Findings, and discussion of the timing of this action and its relationship to other CAA provisions and Congressional action can be found in Section III of these Findings and Volume 11 of the Response to Comments document. c. The Administrator’s Final Decision Was Not Preordained by the President’s May Vehicle Announcement EPA received numerous comments arguing that the President’s announcement of a new ‘‘National Fuel Efficiency Policy’’ on May 19, 2009 seriously undermines EPA’s ability to provide objective consideration of and a legally adequate response to comments PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 objecting to the previously proposed endangerment findings. Commenters’ conclusion is based on the view that the President’s announced policy requires EPA to promulgate greenhouse gas emissions standards under CAA section 202(a), that the President’s and Administrator Jackson’s announcement indicated that the endangerment rulemaking was but a formality and that a final endangerment finding was a fait accompli. Commenters argue that this means the result of this rulemaking has been preordained and the merits of the issues have been prejudged. EPA disagrees. Commenters’ arguments wholly exaggerate and mischaracterize the circumstances. In the April 24, 2009 endangerment proposal EPA was clear that the two steps in the endangerment provision have to be satisfied in order for EPA to issue emissions standards for new motor vehicles under CAA section 202(a) (74 FR at 18888, April 24, 2009). This was repeated when EPA issued the Notice of Upcoming Joint Rulemaking to Establish Vehicle GHG Emissions and CAFE Standards (74 FR 24007 May 22, 2009) (Notice of Intent or NOI). This was repeated again when EPA issued proposed greenhouse gas emissions standards for certain new motor vehicles (74 FR 49454, September 28, 2009). EPA has consistently made it clear that issuance of new motor vehicle standards requires and is contingent upon satisfaction of the two-part endangerment test. On May 19, 2009 EPA issued the joint Notice of Intent, which indicated EPA’s intention to propose new motor vehicle standards. All of the major motor vehicle manufacturers, their trade associations, the State of California, and several environmental organizations announced their full support for the upcoming rulemaking. Not surprisingly, on the same day the President also announced his full support for this action. Commenters, however, erroneously equate this Presidential support with a Presidential directive that requires EPA to prejudge and preordain the result of this rulemaking. The only evidence they point to are simply indications of Presidential support. Commenters point to a press release, which unsurprisingly refers to the Agency’s announcement as delivering on the President’s commitment to enact more stringent fuel economy standards, by bringing ‘‘all stakeholders to the table and [coming] up with a plan’’ for solving a serious problem. The plan that was announced, of course, was a plan to conduct notice and comment E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 rulemaking. The press release itself states that President Obama ‘‘set in motion a new national policy,’’ with the policy ‘‘aimed’’ at reducing greenhouse gas emissions for new cars and trucks. What was ‘‘set in motion’’ was a notice and comment rulemaking described in the NOI issued by EPA on the same day. Neither the President nor EPA announced a final rule or a final direction that day, but instead did no more than announce a plan to go forward with a notice and comment rulemaking. That is how the plan ‘‘delivers on the President’s commitment’’ to enact more stringent standards. The announcement was that a notice and comment rulemaking would be initiated with the aim of adopting certain emissions standards. That is no different from what EPA or any other agency states when it issues a notice of proposed rulemaking. It starts a process that has the aim of issuing final regulations if they are deemed appropriate at the end of the public process. The fact that an Agency proposes a certain result, and expects that a final rule will be the result of setting such a process in motion, is the ordinary course of affairs in notice and comment rulemakings. This does not translate into prejudging the final result or having a preordained result that de facto negates the public comment process. The President’s press release of May 19, 2009 was a recognition that this notice and comment rulemaking process would be set in motion, as well as providing his full support for the Agency to go forward in this direction; it was no more than that. The various stakeholders who announced their support for the plan that had been set in motion all recognized that full notice and comment rulemaking was part of the plan, and they all reserved their rights to participate in such notice and comment rulemaking. For example, see the letter of support from Ford Motor Company, which states that ‘‘Ford fully supports proposal and adoption of such a National Program, which we understand will be subject to full notice-andcomment rulemaking, affording all interested parties including Ford the right to participate fully, comment, and submit information, the results of which are not pre-determined but depend upon processes set by law.’’ d. The Notice and Comment Period Was Adequate Many commenters argue that the 60day comment period was inadequate. Commenters claim that a 60-day period was insufficient time to fully evaluate the science and other information that VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 informed the Administrator’s proposal. Some commenters assert that because the comment period for the Proposed Finding substantially overlapped with the comment period for the Mandatory Greenhouse Gas Reporting Rule, as well as Congress’ consideration of climate legislation, their ability to fully participate in the notice and comment period was ‘‘seriously compromised.’’ Moreover, they continue, because EPA had not yet proposed CAA section 202(a) standards, there was no valid reason to fail to extend the comment period. Several commenters and other entities had also requested that EPA extend the comment period. Some commenters assert that the notice provided by this rulemaking was ‘‘defective’’ because the Federal Register notice announcing the proposal had an error in the e-mail address for the docket. At least one commenter suggests that this error deprives potential commenters of their Due Process under the Fifth Amendment of the Constitution, citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965), and that failure to ‘‘correct’’ the minor typographical error in the e-mail address and extend the comment period would make the rule ‘‘subject to reversal’’ in violation of the CAA, Administrative Procedure Act (APA), the Due Process clause of the Constitution, and EO 12866. Finally, for many of the same reasons that commenters argue a 60-day comment period was inadequate, several commenters request that EPA reopen and/or extend the comment period. One commenter requests that the comment period be reopened because there was new information regarding data used by EPA in the Proposed Findings. In particular, the commenter alleges that it recently became aware that one of the sources of global climate data had destroyed the raw data for its data set of global surface temperatures. The commenter argues that this alleged destruction of raw data violates scientific standards, calls into question EPA’s reliance on that data in these Findings, and necessitates a reopening of the proceedings. Other commenters request that the comment period be extended and/or reopened due to the release of a Federal government document on the impact of climate change in the United States near the end of the comment period, as well as the release of an internal EPA staff document discussing the science. The official public comment period on the proposed rule was adequate. First, a 60-day comment period satisfies the procedural requirements of CAA section 307 of the CAA, which requires PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 66503 a 30-day comment period, and that the docket be kept open to receive rebuttal or supplemental information as followup to any hearings for 30 days following the hearings. EPA met those obligations here—the comment period opened on April 24, 2009, the last hearing was on May 21, 2009 and the comment period closed June 23, 2009. Second, as explained in letters denying requests to extend the comment period, a very large part of the information and analyses for the Proposed Findings had been previously released in July 30, 2008, as part of the Advance Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions under the Clean Air Act (ANPR) (73 FR 44353). The public comment period for the ANPR is discussed above in Section I.C.1 of these Findings. The Administrator explained that the comment period for that ANPR was 120 days and that the major recent scientific assessments that EPA relied upon in the TSD released with the ANPR had previously each gone through their own public review processes and have been publicly available for some time. In other words, EPA has provided ample time for review, particularly with regard to the technical support for the Findings. See, for example, EPA Letter to Congressman Issa dated June 17, 2009, a copy of which is available at https://epa.gov/ climatechange/endangerment.html. Moreover, the comment period was not rendered insufficient merely because other climate-related proceedings were occurring simultaneously. While one commenter suggests that the convergence of several different climate-related activities has ‘‘seriously compromised’’ their ability to participate in the comment process, that commenter was able to submit an 89 page comment on this proposal alone. Moreover, it is hardly rare that more than one rule is out for comment at the same time. As noted above, EPA has received a substantial number of significant comments on the Proposed Findings, and has thoroughly considered and responded to significant comments. EPA finds no evidence that a typographical error in the docket e-mail address of the Federal Register notice announcing the proposal prevented the public from having a meaningful opportunity to comment, and therefore deprived them of due process. Although the minor error—which involved a word processing auto-correction that turned a short dash into a long dash—appeared in the FR version of the Proposed Findings, the e-mail address is correct E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66504 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations in the signature version of the Proposed Findings posted on EPA’s Web site until publication in the Federal Register, and in the ‘‘Instructions for Submitting Written Comments’’ document on the Web site for the rulemaking. EPA has received over 190,000 e-mails to the docket e-mail address to date, so the minor typographical error appearing in only one location has not been an impediment to interested parties’ e-mailing comments. Moreover, EPA provided many other avenues for interested parties to submit comments in addition to the docket e-mail address, including via www.regulations.gov, mail, and fax; each of these options have been utilized by many commenters. EPA is confident that the minor typographical error did not prevent anyone from submitting written comments, by e-mail or otherwise, and that the public was provided ‘‘meaningful participation in the regulatory process’’ as mentioned in EO 12866. Our response regarding the request to reopen the comment period due to concerns about alleged destruction of raw global surface data is discussed more fully in the Response to Comments document, Volume 11. The commenter did not provide any compelling reason to conclude that the absence of these data would materially affect the trends in the temperature records or conclusions drawn about them in the assessment literature and reflected in the TSD. The Hadley Centre/Climate Research Unit (CRU) temperature record (referred to as HadCRUT) is just one of three global surface temperature records that EPA and the assessment literature refer to and cite. National Oceanic and Atmospheric Administration (NOAA) and National Aeronautics and Space Administration (NASA) also produce temperature records, and all three temperature records have been extensively peer reviewed. Analyses of the three global temperature records produce essentially the same long-term trends as noted in the Climate Change Science Program (CCSP) (2006) report ‘‘Temperature Trends in the Lower Atmosphere,’’ IPCC (2007), and NOAA’s study 5 ‘‘State of the Climate in 2008’’. Furthermore, the commenter did not demonstrate that the allegedly destroyed data would materially alter the HadCRUT record or meaningfully hinder its replication. The raw data, a small part of which has not been public (for reasons described at: https:// www.uea.ac.uk/mac/comm/media/ 5 Peterson, T.C., and M.O. Baringer (Eds.) (2009) State of the Climate in 2008. Bull. Amer. Meteor. Soc., 90, S1–S196. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 press/2009/nov/CRUupdate), are available in a quality-controlled (or homogenized, value-added) format and the methodology for developing the quality-controlled data is described in the peer reviewed literature (as documented at https:// www.cru.uea.ac.uk/cru/data/ temperature/). The release of the U.S. Global Climate Research Program (USGCRP) report on impacts of climate change in the United States in June 2009 also did not necessitate extending the comment period. This report was issued by the USGCRP, formerly the Climate Change Science Program (CCSP), and synthesized information contained in prior CCSP reports and other synthesis reports, many of which had already been published (and were included in the TSD for the Proposed Findings). Further, the USGCRP report itself underwent notice and comment before it was finalized and released. Regarding the internal EPA staff paper that came to light during the comment period, several commenters submitted a copy of the EPA staff paper with their comments; EPA’s response to the issues raised by the staff paper are discussed in the Response to Comments document, Volume 1. The fact that some internal agency deliberations were made public during the comment period does not in and of itself call into question those deliberations. As our responses to comments explain, EPA considered the concerns noted in the staff paper during the proposal stage, as well as when finalizing the Findings. There was nothing about those internal comments that required an extension or reopening of the comment period. Thus, the opportunity for comment fully satisfies the CAA and Constitutional requirement of Due Process. Cases cited by commenters do not indicate otherwise. The comment period and thorough response to comment documents in the docket indicate that EPA has given people an opportunity to be heard in a ‘‘meaningful time and a meaningful matter.’’ Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Interested parties had full notice of the rulemaking proceedings and a significant opportunity to participate through the comment process and multiple hearings. For all the above reasons, EPA’s denial of the requests for extension or reopening of the comment period was entirely reasonable in light of the extensive opportunity for public comment and heavy amount of public participation during the comment period. EPA has fully complied with all PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 applicable public participation requirements for this rulemaking. e. These Findings Did Not Necessitate a Formal Rulemaking Under the Administrative Procedure Act One commenter, with the support of others, requests that EPA undertake a formal rulemaking process for the Findings, on the record, in accordance with the procedures described in sections 556–557 of the Administrative Procedure Act (APA). The commenter requests a multi-step process, involving additional public notice, an on-therecord proceeding (e.g., formal administrative hearing) with the right of appeal, utilization of the Clean Air Scientific Advisory Committee (CASAC) and its advisory proceedings, and designation of representatives from other executive branch agencies to participate in the formal proceeding and any CASAC advisory proceeding. The commenter asserts that while EPA is not obligated under the CAA to undertake these additional procedures, the Agency nonetheless has the legal authority to engage in such a proceeding. The commenter believes this proceeding would show that EPA is ‘‘truly committed to scientific integrity and transparency.’’ The commenter cites several cases to argue that refusal to proceed on the record would be ‘‘arbitrary and capricious’’ or would be an ‘‘abuse of discretion.’’ The allegation at the core of the commenter’s argument is that profound and wide-ranging scientific uncertainties exist in the Proposed Findings and in the impacts on health and welfare discussed in the TSD. To support this argument, the commenter provides lengthy criticisms of the science. The commenter also argues that the regulatory cascade that would be ‘‘unleashed’’ by a positive endangerment finding warrants the more formal proceedings. Finally, the commenter suggests that EPA engage in ‘‘formal rulemaking’’ procedures in part due to the Administrative Conference of the United States’ (ACUS) recommended factors for engaging in formal rulemaking. The commenter argues that the current action is ‘‘complex,’’ ‘‘openended,’’ and the costs that errors in the action may pose are ‘‘significant.’’ EPA is denying the request to undertake an ‘‘on the record’’ formal rulemaking. EPA is under no obligation to follow the extraordinarily rarely used formal rulemaking provisions of the APA. First, CAA section 307(d) of the CAA clearly states that the rulemaking provisions of CAA section 307(d), not APA sections 553 through 557, apply to certain specified actions, such as this E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations one. EPA has satisfied all the requirements of CAA section 307(d). Indeed, the commenter itself ‘‘is not asserting that the Clean Air Act expressly requires’’ the additional procedures it requests. Moreover, the commenter does not discuss how the suggested formal proceeding would fit into the informal rulemaking requirements of CAA section 307(d) that do apply. Formal rulemaking is very rarely used by Federal agencies. The formal rulemaking provisions of the APA are only triggered when the statute explicitly calls for proceedings ‘‘on the record after opportunity for an agency hearing.’’ United States v. Florida East Coast Ry. Co., 410 U.S. 224, 241 (1973). The mere mention of the word ‘‘hearing’’ does not trigger the formal rulemaking provisions of the APA. Id. The CAA does not include the statutory phrase required to trigger the formal rulemaking provisions of the APA (and as noted above the APA does not apply in the first place). Congress specified that certain rulemakings under the CAA follow the rulemaking procedures outlined in CAA section 307(d) rather than the APA ‘‘formal rulemaking’’ commenter suggests. Despite the inapplicability of the formal rulemaking provisions to this action, commenters suggest that to refuse to voluntarily undertake rulemaking provisions not preferred by Congress would make EPA’s rulemaking action an ‘‘abuse of discretion.’’ EPA disagrees with this claim, and cases cited by the commenter do not indicate otherwise. To support the idea that an agency decision to engage in informal rulemaking could be an abuse of discretion, commenter cites Ford Motor Co. v. FTC, 673 F.2d 1008 (9th Cir. 1981). In Ford Motor Co., the court ruled that the FTC’s decision regarding an automobile dealership should have been resolved through a rulemaking rather than an individualized adjudication. Id. at 1010. In that instance, the court favored ‘‘rulemaking’’ over adjudication—not ‘‘formal rulemaking’’ over the far more common ‘‘informal rulemaking.’’ The case stands only for the non-controversial proposition that sometimes agency use of adjudications may rise to an abuse of discretion where a rulemaking would be more appropriate—whether formal or informal. The Commenter does not cite a single judicial opinion stating that an agency abused its discretion by following the time-tested and Congressionally-favored informal rulemaking provisions of the CAA or the APA instead of the rarely used formal APA rulemaking provisions. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 The commenter also alludes to the possibility that the choice of informal rulemaking may be ‘‘arbitrary and capricious. EPA disagrees that the choice to follow the frequently used, and CAA required, informal rulemaking procedures is arbitrary and capricious. The commenter cites Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) for the proposition that ‘‘extremely compelling circumstances’’ could lead to a court overturning agency action for declining to follow extraneous procedures. As the commenter notes, in Vermont Yankee the Supreme Court overturned a lower court decision for imposing additional requirements not required by applicable statutes. Even if the dicta in Vermont Yankee could be applied contrary to the holding of the case in the way the commenter suggests, EPA’s decision to follow frequently used informal rulemaking procedures for this action is highly reasonable. As for the ACUS factors the commenter cites in support of its request, as the commenter notes, the ACUS factors are mere recommendations. While EPA certainly respects the views of ACUS, the recommendations are not binding on the Agency. In addition, EPA has engaged in a thorough, traditional rulemaking process that ensures that any concerns expressed by the commenter have been addressed. EPA has fully satisfied all applicable law in their consideration of this rulemaking. Finally, as explained in Section III of these Findings and the Response to Comments document, EPA’s approach to evaluating the evidence before it was entirely reasonable, and did not require a formal hearing. EPA relied primarily on robust synthesis reports that have undergone peer review and comment. The Agency also carefully considered the comments received on the Proposed Findings and TSD, including review of attached studies and documents. The public has had ample opportunity to provide its views on the science, and the record supporting these final findings indicates that EPA carefully considered and responded to significant public comments. To the extent the commenter’s concern is that a formal proceeding will help ensure the right action in response to climate change is taken, that is not an issue for these Findings. As discussed in Section III of these Findings, this science-based judgment is not the forum for considering the potential mitigation options or their impact. II. Legal Framework for This Action As discussed in the Proposed Findings, two statutory provisions of the PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 66505 CAA govern the Administrator’s Findings. Section 202(a) of the CAA sets forth a two-part test for regulatory action under that provision: Endangerment and cause or contribute. Section 302 of the CAA contains definitions of the terms ‘‘air pollutant’’ and ‘‘effects on welfare’’. Below is a brief discussion of these statutory provisions and how they govern the Administrator’s decision, as well as a summary of significant legal comments and EPA’s responses to them. A. Section 202(a) of the CAA— Endangerment and Cause or Contribute 1. The Statutory Framework 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. Based on the text of CAA section 202(a) and its legislative history, the Administrator interprets the two-part test as follows. Further discussion of this two-part test can be found in Section II of the preamble for the Proposed Findings. First, the Administrator is required to protect public health and welfare, but she is not asked to wait until harm has occurred. EPA must be ready to take regulatory action to prevent harm before it occurs. Section 202(a)(1) requires the Administrator to ‘‘anticipate’’ ‘‘danger’’ to public health or welfare. The Administrator is thus to consider both current and future risks. Second, the Administrator is to exercise judgment by weighing risks, assessing potential harms, and making reasonable projections of future trends and possibilities. It follows that when exercising her judgment the Administrator balances the likelihood and severity of effects. This balance involves a sliding scale; on one end the severity of the effects may be of great concern, but the likelihood low, while on the other end the severity may be less, but the likelihood high. Under either scenario, the Administrator is permitted to find endangerment. If the harm would be catastrophic, the Administrator is permitted to find endangerment even if the likelihood is small. Because scientific knowledge is constantly evolving, the Administrator may be called upon to make decisions while recognizing the uncertainties and E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66506 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations limitations of the data or information available, as risks to public health or welfare may involve the frontiers of scientific or medical knowledge. At the same time, the Administrator must exercise reasoned decision making, and avoid speculative inquiries. Third, as discussed further below, the Administrator is to consider the cumulative impact of sources of a pollutant in assessing the risks from air pollution, and is not to look only at the risks attributable to a single source or class of sources. Fourth, the Administrator is to consider the risks to all parts of our population, including those who are at greater risk for reasons such as increased susceptibility to adverse health effects. If vulnerable subpopulations are especially at risk, the Administrator is entitled to take that point into account in deciding the question of endangerment. Here too, both likelihood and severity of adverse effects are relevant, including catastrophic scenarios and their probabilities as well as the less severe effects. As explained below, vulnerable subpopulations face serious health risks as a result of climate change. In addition, by instructing the Administrator to consider whether emissions of an air pollutant cause or contribute to air pollution, the statute is clear that she need not find that emissions from any one sector or group of sources are the sole or even the major part of an air pollution problem. The use of the term ‘‘contribute’’ clearly indicates a lower threshold than the sole or major cause. Moreover, the statutory language in CAA section 202(a) does not contain a modifier on its use of the term contribute. Unlike other CAA provisions, it does not require ‘‘significant’’ contribution. See, e.g., CAA sections 111(b); 213(a)(2), (4). To be sure, any finding of a ‘‘contribution’’ requires some threshold to be met; a truly trivial or de minimis ‘‘contribution’’ might not count as such. The Administrator therefore has ample discretion in exercising her reasonable judgment in determining whether, under the circumstances presented, the cause or contribute criterion has been met. Congress made it clear that the Administrator is to exercise her judgment in determining contribution, and authorized regulatory controls to address air pollution even if the air pollution problem results from a wide variety of sources. While the endangerment test looks at the entire air pollution problem and the risks it poses, the cause or contribute test is designed to authorize EPA to identify and then address what may well be many VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 different sectors or groups of sources that are each part of—and thus contributing to—the problem. This framework recognizes that regulatory agencies such as EPA must be able to deal with the reality that ‘‘[m]an’s ability to alter his environment has developed far more rapidly than his ability to foresee with certainty the effects of his alterations.’’ See Ethyl Corp v. EPA, 541 F.2d 1, 6 (DC Cir.), cert. denied 426 U.S. 941 (1976). Both ‘‘the Clean Air Act ‘and common sense * * * demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.’ ’’ See Massachusetts v. EPA, 549 U.S. at 506, n.7 (citing Ethyl Corp.). The Administrator recognizes that the context for this action is unique. There is a very large and comprehensive base of scientific information that has been developed over many years through a global consensus process involving numerous scientists from many countries and representing many disciplines. She also recognizes that there are varying degrees of uncertainty across many of these scientific issues. It is in this context that she is exercising her judgment and applying the statutory framework. As discussed in the Proposed Findings, this interpretation is based on and supported by the language in CAA section 202(a), its legislative history and case law. 2. Summary of Response to Key Legal Comments on the Interpretation of the CAA Section 202(a) Endangerment and Cause or Contribute Test EPA received numerous comments regarding the interpretation of CAA section 202(a) set forth in the Proposed Findings. Below is a brief discussion of some of the key adverse legal comments and EPA’s responses. Other key legal comments and EPA’s responses are provided in later sections discussing the Administrator’s findings. Additional and more detailed summaries and responses can be found in the Response to Comments document. As noted in the Response to Comments document, EPA also received comments supporting its legal interpretations. a. The Administrator Properly Interpreted the Precautionary and Preventive Nature of the Statutory Language Various commenters argue either that the endangerment test under CAA section 202(a) is not precautionary and preventive in nature, or that EPA’s interpretation and application is so extreme that it is contrary to what Congress intended in 1977, and PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 effectively guarantees an affirmative endangerment finding. Commenters also argue that the endangerment test improperly shifts the burdens to the opponents of an endangerment finding and is tantamount to assuming the air pollution is harmful unless it is shown to be safe. EPA rejects the argument that the endangerment test in CAA section 202(a) is not precautionary or preventive in nature. As discussed in more detail in the proposal, Congress relied heavily on the en banc decision in Ethyl when it revised section 202(a) and other CAA provisions to adopt the current language on endangerment and contribution. 74 FR 18886, 18891–2. The Ethyl court could not have been clearer on the precautionary nature of a criteria based on endangerment. The court rejected the argument that EPA had to find actual harm was occurring before it could make the required endangerment finding. The court stated that: The Precautionary Nature of ‘‘Will Endanger.’’ Simply as a matter of plain meaning, we have difficulty crediting petitioners’ reading of the ‘‘will endanger’’ standard. The meaning of ‘‘endanger’’ is not disputed. Case law and dictionary definition agree that endanger means something less than actual harm. When one is endangered, harm is threatened; no actual injury need ever occur. Thus, for example, a town may be ‘‘endangered’’ by a threatening plague or hurricane and yet emerge from the danger completely unscathed. A statute allowing for regulation in the face of danger is, necessarily, a precautionary statute. Regulatory action may be taken before the threatened harm occurs; indeed, the very existence of such precautionary legislation would seem to demand that regulatory action precede, and, optimally, prevent, the perceived threat. As should be apparent, the ‘‘will endanger’’ language of Section 211(c)(1)(A) makes it such a precautionary statute. Ethyl at 13 (footnotes omitted). Similarly, the court stated that ‘‘[i]n sum, based on the plain meaning of the statute, the juxtaposition of CAA section 211 with CAA sections 108 and 202, and the Reserve Mining precedent, we conclude that the ‘‘will endanger’’ standard is precautionary in nature and does not require proof of actual harm before regulation is appropriate.’’ Ethyl at 17. It is this authority to act before harm has occurred that makes it a preventive, precautionary provision. It is important to note that this statement was in the context of rejecting an argument that EPA had to prove actual harm before it could adopt fuel control regulations under then CAA section 211(c)(1). The court likewise rejected the argument that EPA had to show that such harm was ‘‘probable.’’ E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 The court made it clear that determining endangerment entails judgments involving both the risk or likelihood of harm and the severity of the harm if it were to occur. Nowhere did the court indicate that the burden was on the opponents of an endangerment finding to show that there was no endangerment. The opinion focuses on describing the burden the statute places on EPA, rejecting Ethyl’s arguments of a burden to show actual or probable harm. Congress intentionally adopted a precautionary and preventive approach. It stated that the purpose of the 1977 amendments was to ‘‘emphasize the preventive or precautionary nature of the act, i.e., to assure that regulatory action can effectively prevent harm before it occurs; to emphasize the predominate value of protection to public health.’’ 6 Congress also stated that it authorized the Administrator to weigh risks and make projections of future trends, a ‘‘middle road between those who would impose a nearly impossible standard of proof on the Administrator before he may move to protect public health and those who would shift the burden of proof for all pollutants to make the pollutant source prove the safety of its emissions as a condition of operation.’’ Leg. His. at 2516. Thus, EPA rejects commenters’ arguments. Congress intended this provision to be preventive and precautionary in nature, however it did not shift the burden of proof to opponents of an endangerment finding to show safety or no endangerment. Moreover, as is demonstrated in the following, EPA has not shifted the burden of proof in the final endangerment finding, but rather is weighing the likelihood and severity of harms to arrive at the final finding. EPA has not applied an exaggerated or dramatically expanded precautionary principle, and instead has exercised judgment by weighing and balancing the factors that are relevant under this provision. b. The Administrator Does Not Need To Find That the Control Measures Following an Endangerment Finding Would Prevent at Least a Substantial Part of the Danger in Order To Find Endangerment Several commenters argue that it is unlawful for EPA to make an affirmative endangerment finding unless EPA finds 6 The Supreme Court recognized that the current language in section 202(a), adopted in 1977, is ‘‘more protective’’ than the 1970 version that was similar to the section 211 language before the DC Circuit in Ethyl. Massachusetts v. EPA, 549 U.S. at 506, fn 7. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 that the regulatory control measures contemplated to follow such a finding would prevent at least a substantial part of the danger from the global climate change at which the regulation is aimed. This hurdle is also described by commenters as the regulation ‘‘achieving the statutory objective of preventing damage’’, or ‘‘fruitfully attacking’’ the environmental and public health danger at hand by meaningfully and substantially reducing it. Commenters point to Ethyl Corp. v. EPA, 541 F.2d 1 (DC Cir. 1976) (en banc) as support for this view, as well as portions of the legislative history of this provision. Commenters contend that EPA has failed to show that this required degree of meaningful reduction of endangerment would be achieved through regulation of new motor vehicles based on an endangerment finding. In making any such showing, commenters argue that EPA would need to account for the following: (1) The fact that any regulation would be limited to new motor vehicles, if not the subset of new motor vehicles discussed in the President’s May 2009 announcement, (2) any increase in emissions from purchasers delaying purchases of new vehicles subject to any greenhouse gas emissions standards, or increasing the miles traveled of new vehicles with greater fuel economy, (3) the fact that only a limited portion of the new motor vehicle emissions of greenhouse gases would be controlled, (4) the fact that CAFE standards would effectively achieve the same reductions, and (5) the fact that any vehicle standards would not themselves reduce global temperatures. Some commenters refer to EPA’s proposal for greenhouse gas emissions standards for new motor vehicles as support for these arguments, claiming the proposed new motor vehicle emission standards are largely duplicative of the standards proposed by the National Highway Traffic Safety Administration (NHTSA), and the estimates of the impacts of the proposed standards confirm that EPA’s proposed standards cannot ‘‘fruitfully attack’’ global climate change (74 FR 49454, September 28, 2009). Commenters attempt to read into the statute a requirement that is not there. EPA interprets the endangerment provision of CAA section 202(a) as not requiring any such finding or showing as described by commenters. The text of CAA section 202(a) does not support such an interpretation. The endangerment provision calls for EPA, in its judgment, to determine whether air pollution is reasonably anticipated to endanger public health or welfare, and PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 66507 whether emissions from certain sources cause or contribute to such air pollution. If EPA makes an affirmative finding, then it shall set emissions standards applicable to emissions of such air pollutants from new motor vehicles. There is no reference in the text of the endangerment or cause or contribute provision to anything concerning the degree of reductions that would be achieved by the emissions standards that would follow such a finding. The Administrator’s judgment is directed at the issues of endangerment and cause or contribute, not at how effective the resulting emissions control standards will be. As in the several other similar provisions adopted in the 1977 amendments, in CAA section 202(a) Congress explicitly separated two different decisions to be made, providing different criteria for them. The first decision involves the air pollution and the endangerment criteria, and the contribution to the air pollution by the sources. The second decision involves how to regulate the sources to control the emissions if an affirmative endangerment and contribution finding are made. In all of the various provisions, there is broad similarity in the phrasing of the endangerment and contribution decision. However, for the decision on how to regulate, there are a wide variety of different approaches adopted by Congress. In some case, EPA has discretion whether to issue standards or not, while in other cases, as in CAA section 202(a), EPA is required to issue standards. In some cases, the regulatory criteria are general, as in CAA section 202(a); in others, they provide significantly more direction as to how standards are to be set, as in CAA section 213(a)(4). As the Supreme Court made clear in Massachusetts v. EPA, EPA’s judgment in making the endangerment and contribution findings is constrained by the statute, and EPA is to decide these issues based solely on the scientific and other evidence relevant to that decision. EPA may not ‘‘rest[] on reasoning divorced from the statutory text,’’ and instead EPA’s exercise of judgment must relate to whether an air pollutant causes or contributes to air pollution that endangers. Massachusetts v. EPA, 549 U.S. at 532. As the Supreme Court noted, EPA must ‘‘exercise discretion within defined statutory limits.’’ Id. at 533. EPA’s belief one way or the other regarding whether regulation of greenhouse gases from new motor vehicles would be ‘‘effective’’ is irrelevant in making the endangerment and contribution decisions before EPA. Id. Instead ‘‘[t]he statutory question is E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66508 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations whether sufficient information exists to make an endangerment finding’’ Id. at 534. The effectiveness of a potential future control strategy is not relevant to deciding whether air pollution levels in the atmosphere endanger. It is also not relevant to deciding whether emissions of greenhouse gases from new motor vehicles contribute to such air pollution. Commenters argue that Congress implicitly imposed a third requirement, that the future control strategy have a certain degree of effectiveness in reducing the endangerment before EPA could make the affirmative findings that would authorize such regulation. There is no statutory text that supports such an interpretation, and the Supreme Court makes it clear that EPA has no discretion to read this kind of additional factor into CAA section 202(a)’s endangerment and contribution criteria. In fact, the Supreme Court rejected similar arguments that EPA had the discretion to consider various other factors besides endangerment and contribution in deciding whether to deny a petition. Massachusetts v. EPA, 549 U.S. at 532–35. Commenters point to language from the Ethyl case to support their position, noting that the DC Circuit referred to the emissions control regulation adopted by EPA under CAA section 211(c) as one that would ‘‘fruitfully attack’’ the environmental and public health danger by meaningfully and substantially reducing the danger. It is important to understand the context for this discussion in Ethyl. The petitioner Ethyl Corp. argued that EPA had to show that the health threat from the emissions of lead from the fuel additive being regulated had to be considered in isolation, and the threat ‘‘in and of itself’’ from the additive had to meet the test of endangerment in CAA section 211(c). EPA had rejected this approach, and had interpreted CAA section 211(c)(1) as calling for EPA to look at the cumulative impact of lead, and to consider the impact of lead from emissions related to use of the fuel additive in the context all other human exposure to lead. The court rejected Ethyl’s approach and supported EPA’s interpretation. The DC Circuit noted that Congress was fully aware that the burden of lead on the body was caused by multiple sources and that it would be of no value to try and determine the effect on human health from the lead automobile emissions by themselves. The court specifically noted that ‘‘the incremental effect of lead emissions on the total body lead burden is of no practical value in determining whether VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 health is endangered,’’ but recognized that this incremental effect is of value ‘‘in deciding whether the lead exposure problem can fruitfully be attacked through control of lead additives.’’ Ethyl, 541 F.2d at 31 fn 62. The court made clear that the factor that was critically important to determining the effectiveness of the resulting control strategy—the incremental effect of automobile lead emissions on total body burden—was irrelevant and of no value in determining whether the endangerment criteria was met. Thus it is clear that the court in Ethyl did not interpret then CAA section 211(c)(1)(A) as requiring EPA to make a showing of the effectiveness of the resulting emissions control strategy, and instead found just the opposite, that the factors that would determine effectiveness are irrelevant to determining endangerment. Commenters also cite to the legislative history, noting that Congress referred to the ‘‘preventive or precautionary nature of the Act, i.e., to assure that regulatory action can effectively prevent harm before it occurs.’’ Leg. Hist. at 2516. However, this statement by Congress is presented as an answer to the question on page 2515, ‘‘Should the Administrator act to prevent harm before it occurs or should he be authorized to regulate an air pollutant only if he finds actual harm has already occurred.’’ Leg. Hist. at 2515. In this context, the discussion on page 2516 clearly indicates that there is no opportunity for prevention or precaution if the test is one of actual harm already occurring. This discussion does not say or imply that even if the harm has not occurred, you can not act unless you also show that your action will effectively address it. This discussion concerns the endangerment test, not the criteria for standard setting. The criteria for standard setting address how the agency should act to address the harm, and as the Ethyl case notes, the factors relevant to how to ‘‘fruitfully attack’’ the harm are irrelevant to determining whether the harm is one that endangers the public health or welfare. As with current CAA section 202(a), there is no basis to conflate these two separate decisions and to read into the endangerment criteria an obligation that EPA show that the resulting emissions control strategy or strategies will have some significant degree of harm reduction or effectiveness in addressing the endangerment. The conflating of the two decisions is not supported in the text of this provision, by the Supreme Court in Massachusetts v. EPA, by the DC Circuit in Ethyl, or by Congress in the legislative history of this provision. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 It would be an unworkable interpretation, calling for EPA to project out the result of perhaps not one, but even several, future rulemakings stretching over perhaps a decade or decades. Especially in the context of global climate change, the effectiveness of a control strategy for new motor vehicles would have to be viewed in the context of a number of future motor vehicle regulations, as well as in the larger context of the CAA and perhaps even global context. That would be an unworkable and speculative requirement to impose on EPA as a precondition to answering the public health and welfare issues before it, as they are separate and apart from the issues involved with developing, implementing and evaluating the effectiveness of emissions control strategies. c. The Administrator Does Not Need To Find There Is Significant Risk of Harm Commenters argue that Congress established a minimum requirement that there be a ‘‘significant risk of harm’’ to find endangerment. They contend that this requirement stemmed from the Ethyl case, and that Congress adopted this view. According to the commenters, the risk is the function of two variables: the nature of the hazard at issue and the likelihood of its occurrence. Commenters argue that Congress imposed a requirement that this balance demonstrate a ‘‘significant risk of harm’’ to strike a balance between the precautionary nature of the CAA and the burdensome economic and societal consequences of regulation. There are two basic problems with the commenters’ arguments. First, commenters equate ‘‘significant risk of harm’’ as the overall test for endangerment, however the Ethyl case and the legislative history treat the risk of harm as only one of the two components that are to be considered in determining endangerment.—, The two components are the likelihood or risk of a harm occurring, and the severity of harm if it were to occur. Second, commenters equate it to a minimum statutory requirement. However, while the court in the Ethyl case made it clear that the facts in that case met the then applicable endangerment criteria, it also clearly said it was not determining what other facts or circumstances might amount to endangerment, including cases where the likelihood of a harm occurring was less than a significant risk of the harm. In the EPA rulemaking that led to the Ethyl case, EPA stated that the requirement to reduce lead in gasoline ‘‘is based on the finding that lead E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations particle emissions from motor vehicles present a significant risk of harm to the health of urban populations, particularly to the health of city children’’ (38 FR 33734, December 6, 1973). The court in Ethyl supported EPA’s determination, and addressed a variety of issues. First, it determined that the ‘‘will endanger’’ criteria of then CAA section 211(c) was intended to be precautionary in nature. It rejected arguments that EPA had to show proof of actual harm, or probable harm. Ethyl, 541 F.2d at 13–20. It was in this context, evaluating petitioner’s arguments on whether the likelihood of a harm occurring had to rise to the level of actual or probable harm, that the court approved of EPA’s view that a significant risk of harm could satisfy the statutory criteria. The precautionary nature of the provision meant that EPA did not need to show that either harm was actually occurring or was probable. Instead, the court made it clear that the concept of endangerment is ‘‘composed of reciprocal elements of risk and harm,’’ Ethyl at 18. This means ‘‘the public health may properly be found endangered both by a lesser risk of a greater harm and by a greater risk of lesser harm. Danger depends upon the relation between the risk and harm presented by each case, and cannot legitimately be pegged to ‘probable’ harm, regardless of whether that harm be great or small.’’ The Ethyl court pointed to the decision by the 8th Circuit in Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir, 1975), which interpreted similar language under the Federal Water Pollution Control Act, where the 8th Circuit upheld an endangerment finding in a case involving ‘‘reasonable medical concern,’’ or a ‘‘potential’’ showing of harm. This was further evidence that a minimum ‘‘probable’’ likelihood of harm was not required. The Ethyl court made it clear that there was no specific magnitude of risk of harm occurring that was required. ‘‘Reserve Mining convincingly demonstrates that the magnitude of risk sufficient to justify regulation is inversely proportional to the harm to be avoided.’’ Ethyl at 19. This means there is no minimum requirement that the magnitude of risk be ‘‘significant’’ or another specific level of likelihood of occurrence. You need to evaluate the risk of harm in the context of the severity of the harm if it were to occur. In the case before it, the Ethyl court noted that ‘‘the harm caused by lead poisoning is severe.’’ Even with harm as severe as lead poisoning, EPA did not rely on ‘‘potential’’ risk or a ‘‘reasonable medical concern.’’ Instead, EPA found VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 that there was a significant risk of this harm to health. This finding of a significant risk was less than the level of ‘‘probable’’ harm called for by the petitioner Ethyl Corporation but was ‘‘considerably more certain than the risk that justified regulation in Reserve Mining of a comparably ‘fright-laden’ harm.’’ Ethyl at 19–20. The Ethyl court concluded that this combination of risk (likelihood of harm) and severity of harm was sufficient under CAA section 211(c). ‘‘Thus we conclude that however far the parameters of risk and harm inherent in the ‘will endanger’ standard might reach in an appropriate case, they certainly present a ‘danger’ that can be regulated when the harm to be avoided is widespread lead poisoning and the risk of that occurrence is ‘significant’.’’ Ethyl at 20. Thus, the court made it clear that the endangerment criteria was intended to be precautionary in nature, that the risk of harm was one of the elements to consider in determining endangerment, and that the risk of harm needed to be considered in the context of the severity of the potential harm. It also concluded that a significant risk of harm coupled with an appropriate severity of the potential harm would satisfy the statutory criteria, and in the case before it the Administrator was clearly authorized to determine endangerment where there was a significant risk of harm that was coupled with a severe harm such as lead poisoning. Importantly, the court also made it clear that it was not determining a minimum threshold that always had to be met. Instead, it emphasized that the risk of harm and severity of the potential harm had to be evaluated on a case by case basis. The court specifically said it was not determining ‘‘however far the parameters of risk and harm * * * might reach in an appropriate case.’’ Ethyl at 20. Also see Ethyl fn 17 at 13. The court recognized that this balancing of risk and harm ‘‘must be confined to reasonable limits’’ and even absolute certainty of a de minimis harm might not justify government action. However, ‘‘whether a particular combination of slight risk and great harm, or great risk and slight harm constitutes a danger must depend on the facts of each case.’’ Ethyl at fn 32 at 18.7 7 Commenters point to Amer. Farm Bureau Ass’n v. EPA, 559 F.3d 512, 533 (DC Cir. 2009) as supporting their argument. However, in that case the Court made clear that EPA’s action was not subject to the endangerment criterion in CAA section 108 but instead was subject to CAA section 109’s requirement that the primary NAAQS be requisite to protect the public health with an adequate margin of safety. Under that provision and PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 66509 In some cases, commenters confuse matters by switching the terminology, and instead refer to effects that ‘‘significantly harm’’ the public health or welfare. As with the reference to ‘‘significant risk of harm,’’ commenters fail to recognize that there are two different aspects that must be considered, risk of harm and severity of harm, and neither of these aspects has a requirement that there be a finding of ‘‘significance.’’ The DC Circuit in Ethyl makes clear that it is the combination of these two aspects that must be evaluated for purposes of endangerment, and there is no requirement of ‘‘significance’’ assigned to either of the two aspects that must instead be evaluated in combination. Congress addressed concerns over burdensome economic and societal consequences in the various statutory provisions that provide the criteria for standard setting or other agency action if there is an affirmative endangerment finding. Those statutory provisions, for example, make standard setting discretionary or specify how cost and other factors are to be taken into consideration in setting standards. However, the issues of risk of harm and severity of harm if it were to occur are separate from the issues of the economic impacts of any resulting regulatory provisions (see below). As is clear in the prior summary of the endangerment findings and the more detailed discussion later, the breadth of the sectors of our society that are affected by climate change and the time frames at issue mean there is a very wide range of risks and harms that need to be considered, from evidence of various harms occurring now to evidence of risks of future harms. The Administrator has determined that the body of scientific evidence compellingly supports her endangerment finding. B. Air Pollutant, Public Health and Welfare The CAA defines both ‘‘air pollutant’’ and ‘‘effects on welfare.’’ We provide both definitions here again for convenience. Air pollutant is defined as: its case law, the Court upheld EPA’s reasoned balancing of the uncertainty regarding the link between non-urban thoracic coarse PM and adverse health effects, the large population groups potentially exposed to these particles, and the nature and degree of the health effects at issue. Citing to EPA’s reasoning at 71 FR 61193 in the final PM rule, the court explained that EPA need not wait for conclusive proof of harm before setting a NAAQS under section 109 for this kind of coarse PM. The Court’s reference to EPA’s belief that there may be a significant risk to public health is not stated as any sort of statutory minimum, but instead refers to the Agency’s reasoning at 71 FR 61193, which displays a reasoned balancing of possibility of harm and severity of harm if it were to occur. E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66510 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations ‘‘Any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term ‘‘air pollutant’’ is used.’’ CAA section 302(g). As the Supreme Court held, greenhouse gases fit well within this capacious definition. See Massachusetts v. EPA, 549 U.S. at 532. They are ‘‘without a doubt’’ physical chemical substances emitted into the ambient air. Id. at 529. ‘‘Regarding ‘effects on welfare’, the CAA states that [a]ll 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.’’ CAA section 302(h). As noted in the Proposed Findings, this definition is quite broad. Importantly, it is not an exclusive list due to the use of the term ‘‘includes, but is not limited to, * * * .’’ Effects other than those listed here may also be considered effects on welfare. Moreover, the terms contained within the definition are themselves expansive. Although the CAA defines ‘‘effects on welfare’’ as discussed above, there are no definitions of ‘‘public health’’ or ‘‘public welfare’’ in the CAA. The Supreme Court has discussed the concept of public health in the context of whether costs of implementation can be considered when setting the health based primary National Ambient Air Quality Standards. Whitman v. American Trucking Ass’n, 531 U.S. 457 (2001). In Whitman, the Court imbued the term with its most natural meaning: ‘‘the health of the public. Id. at 466. In the past, when considering public health, EPA has looked at morbidity, such as impairment of lung function, aggravation of respiratory and cardiovascular disease, and other acute and chronic health effects, as well as mortality. See, e.g., Final National Ambient Air Quality Standard for Ozone, (73 FR 16436, 2007). EPA received numerous comments regarding its proposed interpretations of VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 air pollutant and public health and welfare. Summaries of key comments and EPA’s responses are discussed in Sections IV and V of these Findings. Additional and more detailed summaries and responses can be found in the Response to Comments document. As noted in the Response to Comments document, EPA also received comments supporting its legal interpretations. III. EPA’s Approach for Evaluating the Evidence Before It This section discusses EPA’s approach to evaluating the evidence before it, including the approach taken to the scientific evidence, the legal framework for this decision making, and several issues critical to determining the scope of the evaluation performed. A. The Science on Which the Decisions Are Based In 2007, EPA initiated its assessment of the science and other technical information to use in addressing the endangerment and cause or contribute issues before it under CAA section 202(a). This scientific and technical information was developed in the form of a TSD in 2007. An earlier draft of this document was released as part of the ANPR published July 30, 2008 (73 FR 44353). That earlier draft of the TSD relied heavily on the IPCC Fourth Assessment Report of 2007, key NRC reports, and a limited number of thenavailable synthesis and assessment products of the U.S. Climate Change Science Program (CCSP; now encompassed by USGCRP). EPA received a number of comments specifically focused on the TSD during the 120-day public comment period for the ANPR. EPA revised and updated the TSD in preparing the Proposed Findings on endangerment and cause or contribute. Many of the comments received on the ANPR were reflected in the draft TSD released in April 2009 that served as the underlying scientific and technical basis for the Administrator’s Proposed Findings, published April 24, 2009 (74 FR 18886). The draft TSD released in April 2009 also reflected the findings of 11 new synthesis and assessment products under the U.S. CCSP that had been published since July 2008. The TSD that summarizes scientific findings from the major assessments of the USGCRP, the IPCC, and the NRC accompanies these Findings. The TSD is available at www.epa.gov/ climatechange/endangerment.html and in the docket for this action. It also includes the most recent comprehensive assessment of the USGCRP, Global PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 Climate Change Impacts in the United States,8 published in June 2009. In addition, the TSD incorporates up-todate observational data for a number of key climate variables from the NOAA, and the most up-to-date emissions data from EPA’s annual Inventory of U.S. Greenhouse Gas Emissions and Sinks, published in April, 2009.9 And finally, as discussed in Section I.B of these Findings, EPA received a large number of public comments on the Administrator’s Proposed Findings, many of which addressed science issues either generally or specifically as reflected in the draft TSD released with the April 2009 proposal. A number of edits and updates were made to the draft TSD as a result of these comments.10 EPA is giving careful consideration to all of the scientific and technical information in the record, as discussed below. However, the Administrator is relying on the major assessments of the USGCRP, IPCC, and NRC as the primary scientific and technical basis of her endangerment decision for a number of reasons. First, these assessments address the scientific issues that the Administrator must examine for the endangerment analysis. When viewed in total, these assessments address the issue of greenhouse gas endangerment by providing data and information on: (1) The amount of greenhouse gases being emitted by human activities; (2) how greenhouse gases have been and continue to accumulate in the atmosphere as a result of human activities; (3) changes to the Earth’s energy balance as a result of the buildup of atmospheric greenhouse gases; (4) observed temperature and other climatic changes at the global and regional scales; (5) observed changes in other climate-sensitive sectors and systems of the human and natural environment; (6) the extent to which observed climate change and other changes in climatesensitive systems can be attributed to the human-induced buildup of atmospheric greenhouse gases; (7) future projected climate change under a range of different scenarios of changing greenhouse gas emission rates; and (8) the projected risks and impacts to 8 Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) Global Climate Change Impacts in the United States. Cambridge University Press, Cambridge, United Kingdom. 9 U.S. EPA (2009) Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2007. EPA–430–R– 09–004, Washington, DC. 10 EPA has placed within the docket a separate memo ‘‘Summary of Major Changes to the Technical Support Document’’ identifying where within the TSD such changes were made relative to the draft TSD released in April 2009. E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations human health, society and the environment. Second, as indicated above, these assessments are recent and represent the current state of knowledge on the key elements for the endangerment analysis. It is worth noting that the June 2009 assessment of the USGCRP incorporates a number of key findings from the 2007 IPCC Fourth Assessment Report; such findings include the attribution of observed climate change to human emissions of greenhouse gases, and the future projected scenarios of climate change for the global and regional scales. This demonstrates that much of the underlying science that EPA has been utilizing since 2007 has not only been in the public domain for some time, but also has remained relevant and robust. Third, these assessments are comprehensive in their coverage of the greenhouse gas and climate change problem, and address the different stages of the emissions-to-potentialharm chain necessary for the endangerment analysis. In so doing, they evaluate the findings of numerous individual peer-reviewed studies in order to draw more general and overarching conclusions about the state of science. The USGCRP, IPCC, and NRC assessments synthesize literally thousands of individual studies and convey the consensus conclusions on what the body of scientific literature tells us. Fourth, these assessment reports undergo a rigorous and exacting standard of peer review by the expert community, as well as rigorous levels of U.S. government review and acceptance. Individual studies that appear in scientific journals, even if peer reviewed, do not go through as many review stages, nor are they reviewed and commented on by as many scientists. The review processes of the IPCC, USGCRP, and NRC (explained in fuller detail in the TSD and the Response to Comments document, Volume 1) provide EPA with strong assurance that this material has been well vetted by both the climate change research community and by the U.S. government. These assessments therefore essentially represent the U.S. government’s view of the state of knowledge on greenhouse gases and climate change. For example, with regard to government acceptance and approval of IPCC assessment reports, the USGCRP Web site states that: ‘‘When governments accept the IPCC reports and approve their Summary for Policymakers, they acknowledge the legitimacy of their VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 scientific content.’’ 11 It is the Administrator’s view that such review and acceptance by the U.S. Government lends further support for placing primary weight on these major assessments. It is EPA’s view that the scientific assessments of the IPCC, USGRCP, and the NRC represent the best reference materials for determining the general state of knowledge on the scientific and technical issues before the agency in making an endangerment decision. No other source of information provides such a comprehensive and in-depth analysis across such a large body of scientific studies, adheres to such a high and exacting standard of peer review, and synthesizes the resulting consensus view of a large body of scientific experts across the world. For these reasons, the Administrator is placing primary and significant weight on these assessment reports in making her decision on endangerment. A number of commenters called upon EPA to perform a new and independent assessment of all of the underlying climate change science, separate and apart from USGCRP, IPCC, and NRC. In effect, commenters suggest that EPA is either required to or should ignore the attributes discussed above concerning these assessment reports, and should instead perform its own assessment of all of the underlying studies and information. In addition to the significant reasons discussed above for relying on and placing primary weight on these assessment reports, EPA has been a very active part of the U.S. government climate change research enterprise, and has taken an active part in the review, writing, and approval of these assessments. EPA was the lead agency for three significant reports under the USGCRP 12, and recently completed an 11 https://www.globalchange.gov/publications/ reports/ipcc-reports. 12 CCSP (2009) Coastal Sensitivity to Sea-Level Rise: A Focus on the Mid-Atlantic Region. A Report by the U.S. Climate Change Science Program and the Subcommittee on Global Change Research. [James G. Titus (Coordinating Lead Author), K. Eric Anderson, Donald R. Cahoon, Dean B. Gesch, Stephen K. Gill, Benjamin T. Gutierrez, E. Robert Thieler, and S. Jeffress Williams (Lead Authors)], U.S. Environmental Protection Agency, Washington DC, USA, 320 pp. CCSP (2008) Preliminary review of adaptation options for climate-sensitive ecosystems and resources. A Report by the U.S. Climate Change Science Program and the Subcommittee on Global Change Research. [Julius, S.H., J.M. West (eds.), J.S. Baron, B. Griffith, L.A. Joyce, P. Kareiva, B.D. Keller, M.A. Palmer, C.H. Peterson, and J.M. Scott (Authors)]. U.S. Environmental Protection Agency, Washington, DC, USA, 873 pp. CCSP (2008) Analyses of the effects of global change on human health and welfare and human systems. A Report by the U.S. Climate Change Science Program and the Subcommittee on PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 66511 assessment addressing the climate change impacts on U.S. air quality—a report on which the TSD heavily relies for that particular issue. EPA was also involved in review of the IPCC Fourth Assessment Report, and in particular took part in the approval of the summary for policymakers for the Working Group II Volume, Impacts, Adaptation and Vulnerability.13 The USGCRP, IPCC, and NRC assessments have been reviewed and formally accepted by, commissioned by, or in some cases authored by, U.S. government agencies and individual government scientists. These reports already reflect significant input from EPA’s scientists and the scientists of many other government agencies. EPA has no reason to believe that the assessment reports do not represent the best source material to determine the state of science and the consensus view of the world’s scientific experts on the issues central to making an endangerment decision with respect to greenhouse gases. EPA also has no reason to believe that putting this significant body of work aside and attempting to develop a new and separate assessment would provide any better basis for making the endangerment decision, especially because any such new assessment by EPA would still have to give proper weight to these same consensus assessment reports. In summary, EPA concludes that its reliance on existing and recent synthesis and assessment reports is entirely reasonable and allows EPA to rely on the best available science.14 EPA also recognizes that scientific research is very active in many areas addressed in the TSD (e.g., aerosol effects on climate, climate feedbacks such as water vapor, and internal and external climate forcing mechanisms), as well as for some emerging issues (e.g., ocean acidification and climate change effects on water quality). EPA recognizes the potential importance of new scientific research, and the value of an ongoing process to take more recent science into account. EPA reviewed new literature in Global Change Research. [Gamble, J.L. (ed.), K.L. Ebi, F.G. Sussman, T.J. Wilbanks, (Authors)]. U.S. Environmental Protection Agency, Washington, DC, USA. 13 IPCC (2007) Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden and C.E. Hanson, Eds., Cambridge University Press, Cambridge, UK, 976pp. 14 It maintains the highest level of adherence to Agency and OMB guidelines for data and scientific integrity and transparency. This is discussed in greater detail in EPA’s Response to Comments document. E:\FR\FM\15DER4.SGM 15DER4 66512 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations 2009). A variety of important legal issues are also discussed in Sections III, IV, and V of these Findings, as well as in the Response to Comments document, Volume 11. Section IV and V of these Findings explain the Administrator’s decisions, and how she exercised her judgment in making the endangerment and contribution determinations, based on the entire scientific record before her and the legal framework structuring her decision making. erowe on DSK5CLS3C1PROD with RULES4 preparation of this TSD to evaluate its consistency with recent scientific assessments. We also considered public comments received and studies incorporated by reference. In a number of cases, the TSD was updated based on such information to add context for assessment literature findings, which includes supporting information and/or qualifying statements. In other cases, material that was not incorporated into the TSD is discussed within the Response to Comments document. EPA reviewed these individual studies that were not considered or reflected in these major assessments to evaluate how they inform our understanding of how greenhouse gas emissions affect climate change, and how climate change may affect public health and welfare. Given the very large body of studies reviewed and assessed in developing the assessment reports, and the rigor and breadth of that review and assessment, EPA placed limited weight on the much smaller number of individual studies that were not considered or reflected in the major assessments. EPA reviewed them largely to see if they would lead EPA to change or place less weight on the judgments reflected in the assessment report. While EPA recognizes that some studies are more useful or informative than others, and gave each study it reviewed the weight it was due, the overall conclusion EPA drew from its review of studies submitted by commenters was that the studies did not change the various conclusions or judgments EPA would draw based on the assessment reports. Many comments focus on the scientific and technical data underlying the Proposed Findings, such as climate change science and greenhouse gas emissions data. These comments cover a range of topics and are summarized and responded to in the Response to Public Comments document. The responses note those cases where a technical or scientific comment resulted in an editorial or substantive change to the TSD. The final TSD reflects all changes made as a result of public comments. C. Adaptation and Mitigation Following the language of CAA section 202(a), in which the Administrator, in her judgment, must determine if greenhouse gases constitute the air pollution that may be reasonably anticipated to endanger public health or welfare, EPA evaluated, based primarily on the scientific reports discussed above, how greenhouse gases and other climate-relevant substances are affecting the atmosphere and climate, and how these climate changes affect public health and welfare, now and in the future. Consistent with EPA’s scientific approach underlying the Administrator’s Proposed Findings, EPA did not undertake a separate analysis to evaluate potential societal and policy responses to any threat (i.e., the endangerment) that may exist due to anthropogenic emissions of greenhouse gases. Risk reduction through adaptation and greenhouse gas mitigation measures is of course a strong focal area of scientists and policy makers, including EPA; however, EPA considers adaptation and mitigation to be potential responses to endangerment, and as such has determined that they are outside the scope of the endangerment analysis. The Administrator’s position is not that adaptation will not occur or cannot help protect public health and welfare from certain impacts of climate change, as some commenters intimated. To the contrary, EPA recognizes that some level of autonomous adaptation 15 will occur, and commenters are correct that autonomous adaptation can affect the severity of climate change impacts. B. The Law on Which the Decisions Are Based In addition to grounding these determinations on the science, they are also firmly grounded in EPA’s legal authority. Section II of these Findings provides an in-depth discussion of the legal framework for the endangerment and cause or contribute decisions under CAA section 202(a), with additional discussion in Section II of the Proposed Finding (74 FR 18886, 18890, April 24, 15 The IPCC definition of adaptation: ‘‘Adaptation to climate change takes place through adjustments to reduce vulnerability or enhance resilience in response to observed or expected changes in climate and associated extreme weather events. Adaptation occurs in physical, ecological and human systems. It involves changes in social and environmental processes, perceptions of climate risk, practices and functions to reduce potential damages or to realize new opportunities.’’ The IPCC defines autonomous adaptation as ‘‘Adaptation that does not constitute a conscious response to climatic stimuli but is triggered by ecological changes in natural systems and by market or welfare changes in human systems.’’ VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 Indeed, there are some cases in the TSD in which some degree of adaptation is accounted for; these cases occur where the literature on which the TSD relies already uses assumptions about autonomous adaptation when projecting the future effects of climate change. Such cases are noted in the TSD. We also view planned adaptation as an important near-term risk-minimizing strategy given that some degree of climate change will continue to occur as a result of past and current emissions of greenhouse gases that remain in the atmosphere for decades to centuries. However, it is the Administrator’s position that projections of adaptation and mitigation in response to risks and impacts associated with climate change are not appropriate for EPA to consider in making a decision on whether the air pollution endangers. The issue before EPA involves evaluating the risks to public health and welfare from the air pollution if we do not take action to address it. Adaptation and mitigation address an important but different issue—how much risk will remain assuming some projection of how people and society will respond to the threat. Several commenters argue that it is arbitrary not to consider adaptation in determining endangerment. They contend that because endangerment is a forward-looking exercise, the fundamental inquiry concerns the type and extent of harm that is believed likely to occur in the future. Just as the Administrator makes projections of potential harms in the future, these commenters contend that the Administrator needs to consider the literature on adaptation that addresses the likelihood and the severity of potential effects. Commenters also note that since adaption is one of the likely impacts of climate change, it is irrational to exclude it from consideration when the goal is to evaluate the risks and harms in the real world in the future, not the risks and harms in the hypothetical scenario that result if you ignore adaptation. According to commenters, the Administrator must consider both autonomous adaptation and anticipatory adaptation. They contend that literature on adaptation makes it clear there is a significant potential for adaptation, and that it can reduce the likelihood or severity of various effects, including health effects, and could even avert what might otherwise constitute endangerment. Commenters note that EPA considered the adaptation of species in nature, and it is arbitrary to not also consider adaptation by humans. Moreover, they argue that there is great E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations certainty that adaptation will occur, and thus EPA is required to address it and make projections. They recommend that EPA look to historic responses to changes in conditions as an analogue in making projections, recognizing that life in the United States is likely to be quite different 50 or 100 years from now, irrespective of climate change. Commenters argue that adaption needs to be considered because it is central to the statutory requirements governing the endangerment inquiry. EPA is charged to determine the type and extent of harms that are likely to occur, and they argue that this can not rationally be considered without considering adaptation. Since some degree of adaptation is likely to occur, they continue that such a projection of future actual conditions requires consideration of adaption to evaluate whether the future conditions amount to endangerment from the air pollution. According to commenters, the issue therefore is focused on human and societal adaptation, which can come in a wide variety of forms, ranging from changes in personal behavioral patterns to expenditures of resources to change infrastructure, such as building and maintaining barriers to protect against sea level rise. With regard to mitigation, commenters argue that EPA should consider mitigation strategies and their potential to alleviate harm from greenhouse gas emissions. They contend that it is unreasonable for EPA to assume that society will not undertake mitigation. Section 202(a) of the CAA reflects the basic approach of many CAA sections— the threshold inquiry is whether the endangerment and cause or contribute criteria are satisfied, and only if they are met do the criteria for regulatory action go into effect. This reflects the basic separation of two different decisions—is this a health and welfare problem that should be addressed, and if so what are the appropriate mechanisms to address it? There is a division between identifying the health and welfare problem associated with the air pollution, and identifying the mechanisms used to address or solve the problem. In evaluating endangerment, EPA is determining whether the risks to health and welfare from the air pollution amount to endangerment. As commenters recognize, that calls for evaluating and projecting the nature and types of risks from the air pollution, including the probability or likelihood of the occurrence of an impact and the degree of adversity (or benefit) of such an impact. This issue focuses on how VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 EPA makes such an evaluation in determining endangerment—does EPA look at the risks assuming no planned adaptation and/or mitigation, although EPA projects some degree is likely to occur, or does EPA look at the risks remaining after some projection of adaptation and/or mitigation? These two approaches reflect different views of the core question EPA is trying to answer. The first approach most clearly focuses on just the air pollution and its impacts, and aims to separate this from the human and societal responses that may or should be taken in response to the risks from the air pollution. By its nature, this separation means this approach may not reflect the actual conditions in the real world in the future, because adaptation and/or mitigation may occur and change the risks. For example, adaptation would not change the atmospheric concentrations, or the likelihood or probability of various impacts occurring (e.g., it would not change the degree of sea level rise), but adaptation has the potential to reduce the adversity of the effects that do occur from these impacts. Mitigation could reduce the atmospheric concentrations that would otherwise occur, having the potential to reduce the likelihood or probability of various impacts occurring. Under this approach, the evaluation of risk is focused on the risk if we do not address the problem. It does not answer the question of how much risk we project will remain after we do address the problem, through either adaptation or mitigation or some combination of the two. The second approach, suggested by commenters, would call for EPA to project into the future adaptation and/ or mitigation, and the effect of these measures in reducing the risks to health or welfare from the air pollution. Commenters argue this will better reflect likely real world conditions, and therefore is needed to allow for an appropriate determination of whether EPA should, at this time, make an affirmative endangerment finding. However, this approach would not separate the air pollution and its impacts from the human and societal responses to the air pollution. It would intentionally and inextricably intertwine them. It would inexorably change the focus from how serious is the air pollution problem we need to address to how good a job are people and society likely to do in addressing or solving the problem. In addition it would dramatically increase the complexity of the issues before EPA. The context for this endangerment finding is a time span of several decades PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 66513 into the future. It involves a wide variety of differing health and welfare effects, and almost every sector in our society. This somewhat unique context tends to amplify the differences between the two different approaches. It also means that it is hard to cleanly implement either approach. For example, it is hard under the first approach to clearly separate impacts with and without adaption, given the nature of the scientific studies and information before us. Under the second approach it would be extremely hard to make a reasoned projection of human and societal adaptation and mitigation responses, because these are basically not scientific or technical judgments, but are largely political judgments for society or individual personal judgments. However, the context for this endangerment finding does not change the fact that at their core the two different approaches are aimed at answering different questions. The first approach is focused on answering the question of what are the risks to public health and welfare from the air pollution if we do not take action to address it. The second approach is focused on answering the question of how much risk will remain assuming some projection of how people and society will respond. EPA believes that it is appropriate and reasonable to interpret CAA section 202(a) as calling for the first approach. The structure of CAA section 202(a) and the various other similar provisions indicate an intention by Congress to separate the question of what is the problem we need to address from the question of what is the appropriate way to address it. The first approach is clearly more consistent with this statutory structure. The amount of reduction in risk that might be achieved through adaptation and/or mitigation is closely related to the way to address a problem, and is not focused on what is the problem that needs to be addressed. It helps gauge the likelihood of success in addressing a problem, and how good a job society may do in reducing risk; it is not at all as useful in determining the severity of the problem that needs to be addressed. The endangerment issue at its core is a decision on whether there is a risk to health and welfare that needs to be addressed, and the second approach would tend to indicate that the more likely a society is to solve a problem, the less likely there is a problem that needs to be addressed. This would mask the issue and provide a directionally wrong signal. Assume two different situations, both presenting the same serious risks to E:\FR\FM\15DER4.SGM 15DER4 66514 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 public health or welfare without consideration of adaptation or mitigation. The more successful society is projected to be in solving the serious problem in the future would mean the less likely we would be to make an endangerment finding at the inception identifying it as a problem that needs to be addressed. This is much less consistent with the logic embodied in CAA section 202(a), which separates the issue of whether there is a problem from the issue of what can be done to successfully address it. In addition, the second approach would dramatically increase the complexity of the issues to resolve, and would do this by bringing in issues that are not the subject of the kind of scientific or technical judgments that Congress envisioned for the endangerment test. The legislative history indicates Congress was focused on issues of science and medicine, including issues at the frontiers of these fields. It referred to data, research resources, science and medicine, chemistry, biology, and statistics. There is no indication Congress envisioned exercising judgment on the very different types of issues involved in projecting the political actions likely to be taken by various local, State, and Federal governments, or judgments on the business or other decisions that are likely to be made by companies or other organizations, or the changes in personal behavior that may be occasioned by the adverse impacts of air pollution. The second approach would take EPA far away from the kind of judgments Congress envisioned for the endangerment test. D. Geographic Scope of Impacts It is the Administrator’s view that the primary focus of the vulnerability, risk, and impact assessment is the United States. As described in Section IV of these Findings, the Administrator gives some consideration to climate change effects in world regions outside of the United States. Given the global nature of climate change, she has also examined potential impacts in other regions of the world. Greenhouse gases, once emitted, become well mixed in the atmosphere, meaning U.S. emissions can affect not only the U.S. population and environment, but other regions of the world as well. Likewise, emissions in other countries can affect the United States. Furthermore, impacts in other regions of the world may have consequences that in turn raise humanitarian, trade, and national security concerns for the United States. Commenters argue that EPA does not have the authority to consider VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 international effects. They contend that the burden is on EPA is to show endangerment based on impacts in the United States. They note that EPA proposed this approach, which is the only relevant issue for EPA. The purpose of CAA section 202(a), as the stated purpose of the CAA, commenters note, is to protect the quality of the nation’s air resources and to protect the health and welfare of the U.S. population. Thus, they continue, international public health and welfare are not listed or stated, and are not encompassed by these provisions. Moreover, they argue that Congress addressed international impacts expressly in two other provisions of the CAA. They note that under CAA section 115, EPA considers emissions of pollutants that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare in a foreign country, and that CAA section 179B addresses emissions of air pollutants in foreign countries that interfere with attainment of a National Ambient Air Quality Standards (NAAQS) in the United States. Because Congress intentionally addressed international impacts in those provision, commenters argue that the absence of this direction in CAA section 202(a) means that EPA is not to consider international effects when assessing endangerment under this provision. Commenters fail to recognize that EPA’s consideration of international effects is directed at evaluating their impact on the public health and welfare of the U.S. population. EPA is not considering international effects to determine whether the health and welfare of the public in a foreign country is endangered. Instead, EPA’s consideration of international effects for purposes of determining endangerment is limited to how those international effects impact the health and welfare of the U.S. population. The Administrator looked first at impacts in the United States itself, and determined that these impacts are reasonably anticipated to endanger the public health and the welfare of the U.S. population. That remains the Administrator’s position, and by itself supports her determination of endangerment. The Administrator also considered the effects of global climate change outside the borders of the United States and evaluated them to determine whether these international effects impact the U.S. population, and if so whether it impacts the U.S. population in a manner that supports or does not support endangerment to the health and welfare of the U.S. public. She is not evaluating international effects to PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 determine whether populations in a foreign country are endangered. The Administrator is looking at international effects solely for the purpose of evaluating their effects on the U.S. population. For example, the U.S. population can be impacted by effects in other countries. These international effects can impact U.S. economic, trade, and humanitarian and national security interests. These would be potential effects on the U.S. population, brought about by the effects of climate change occurring outside the United States. It is fully reasonable and rational to expect that events occurring outside our borders can affect the U.S. population. Thus, commenters misunderstand the role that international effects played in the proposal. The Administrator is not evaluating the impact of international effects on populations outside the United States; she is considering what impact these international effects could have on the U.S. population. That is fully consistent with the CAA’s stated purpose of protecting the health and welfare of this nation’s population. E. Temporal Scope of Impacts An additional parameter of the endangerment analysis is the timeframe. The Administrator’s view is that the timeframe over which vulnerabilities, risks, and impacts are considered should be consistent with the timeframe over which greenhouse gases, once emitted, have an effect on climate. Thus the relevant time frame is decades to centuries for the primary greenhouse gases of concern. Therefore, in addition to reviewing recent observations, the underlying science upon which the Administrator is basing her findings generally considers the next several decades—the time period out to around 2100, and for certain impacts, the time period beyond 2100. How the accumulation of atmospheric greenhouse gases and resultant climate change may affect current and future generations is discussed in section IV in these Findings. By current generations we mean a near-term time frame of approximately the next 10 to 20 years; by future generations we mean a longerterm time frame extending beyond that. Some public comments were received that questioned making an endangerment finding based on current conditions, while others questioned EPA’s ability to make an endangerment finding based on future projected conditions. Some of these comments are likewise addressed in Section IV in these Findings; and all comments on these temporal issues are addressed in the Response to Comments document. E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations F. Impacts of Potential Future Regulations and Processes That Generate Greenhouse Gas Emissions This action is a stand-alone set of findings regarding endangerment and cause or contribute for greenhouse gases under CAA section 202(a), and does not contain any regulatory requirements. Therefore, this action does not attempt to assess the impacts of any future regulation. Although EPA would evaluate any future proposed regulation, many commenters argue that such a regulatory analysis should be part of the endangerment analysis. Numerous commenters argue that EPA must fully consider the adverse and beneficial impacts of regulation together with the impacts of inaction, and describe this balancing as ‘‘risk-risk analysis,’’ ‘‘health-health analysis,’’ and most predominantly ‘‘risk tradeoff analysis.’’ Commenters argue that EPA’s final endangerment finding would be arbitrary unless EPA undertakes this type of risk trade-off analysis. Commenters specifically argue that EPA must consider the economic impact of regulation, including the Prevention of Significant Deterioration (PSD) permitting program for major stationary sources because it is triggered by a CAA section 202(a) standard, when assessing whether there is endangerment to public welfare. In other words, they argue that the Administrator should determine if finding endangerment and regulating greenhouse gases under the CAA would be worse for public health and welfare than not regulating. Commenters also argue that the reference to ‘‘public’’ health or welfare in CAA section 202, as well as the fact that impacts on the economy should be considered impacts to welfare, especially requires EPA to consider the full range of possible impacts of regulation. Commenters provide various predictions regarding how regulating greenhouse gases under the CAA more broadly will impact the public, industry, states the overall economy, and thus, they conclude, public health and welfare. Examples of commenters’ predictions include potential adverse impacts on (1) the housing industry and the availability of affordable housing, (2) jobs and income due to industry moving overseas, (3) the agriculture industry and its ability to provide affordable food, and (4) the nation’s energy supply. They also cite to the letter from the Office of Management and Budget provided with the ANPR, as well as interagency comments on the draft Proposed Findings, in support of their argument. At least one commenter argues that EPA fails to discuss the public health or VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 welfare benefits of the processes that produce the emissions. The commenter contends that for purposes of CAA section 202(a), this process would be the combustion of gasoline or other transportation fuel in new motor vehicles, and that for purposes of other CAA provisions with similar endangerment finding triggers, the processes would be the combustion of fossil fuel for electric generation and other activities. The commenter continues that EPA’s decision to limit its analysis to the perceived detrimental aspects of emissions after they enter the atmosphere—as opposed to the possible positive aspects of emissions because of the processes that create the emissions—is based on EPA’s overly narrow interpretation of both the meaning of the term ‘‘emission’’ in CAA section 202(a) (and therefore in other endangerment finding provisions) and the intent of these provisions. The commenter states that logically, it makes little sense to limit the definition of the term ‘‘emission’’ to only the ‘‘air pollutants’’ that are emitted. The commenter concludes that when EPA assesses whether the emission of greenhouse gases endanger public health and welfare, EPA must assess the dangers and benefits on both sides of the point where the emissions occur: in the atmosphere where the emissions lodge and, on the other side of the emitting stack or structure, in the processes that create the emissions. Otherwise, EPA will not be able to accurately assess whether the fact that society emits greenhouse gases is a benefit or a detriment. The commenter states that because greenhouse gas emissions, particularly carbon dioxide emissions, are so closely tied with all facets of modern life, a finding that greenhouse gas emissions endanger public health and welfare is akin to saying that modern life endangers public health or welfare. The commenter states that simply cannot be true because the lack of industrial activity that causes greenhouse gas emissions would pose other, almost certainly more serious health and welfare consequences. Finally, some commenters argue that the impact of regulating under CAA section 202(a) supports making a final, negative endangerment finding. These commenters contend that the incredible costs associated with using the inflexible regulatory structure of the CAA will harm public health and welfare, and therefore EPA should exercise its discretion and find that greenhouse gases do not endanger public health and welfare because once PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 66515 EPA makes an endangerment finding under CAA section 202(a), it will be forced to regulate greenhouse gases under a number of other sections of the CAA, resulting in regulatory chaos. At their core, these comments are not about whether commenters believe greenhouse gases may reasonably be anticipated to endanger public health or welfare, but rather about commenters’ dissatisfaction with the decisions that Congress made regarding the response to any endangerment finding that EPA makes under CAA section 202(a). These comments do not discuss the science of greenhouse gases or climate change, or the impacts of climate change on public health or welfare. Instead they muddle the rather straightforward scientific judgment about whether there may be endangerment by throwing the potential impact of responding to the danger into the initial question. To use an analogy, the question of whether the cure is worse than the illness is different than the question of whether there is an illness in the first place. The question of whether there is endangerment is like the question of whether there is an illness. Once one knows there is an illness, then the next question is what to do, if anything, in response to that illness. What these comments object to is that Congress has already made some decisions about next steps after a finding of endangerment, and commenters are displeased with the results. But if this is the case, commenters should take up their concerns with Congress, not EPA. EPA’s charge is to issue new motor vehicle standards under CAA section 202(a) applicable to emissions of air pollutants that cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. It is not to find that there is no endangerment in order to avoid issuing those standards, and dealing with any additional regulatory impact. Indeed, commenters’ argument would insert policy considerations into the endangerment decision, an approach already rejected by the Supreme Court. First, as discussed in Section I.B of these Findings, in Massachusetts v. EPA, the court clearly indicated that the Administrator’s decision must be a ‘‘scientific judgment.’’ 549 U.S. at 534. She must base her decision about endangerment on the science, and not on policy considerations about the repercussions or impact of such a finding. Second, in considering whether the CAA allowed for economic considerations to play a role in the promulgation of the NAAQS, the E:\FR\FM\15DER4.SGM 15DER4 66516 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 Supreme Court rejected arguments that because many more factors than air pollution might affect public health, EPA should consider compliance costs that produce health losses in setting the NAAQS. Whitman v. ATA, 531 U.S. at 457, 466 (2001). To be sure, the language in CAA section 109(b) applicable to the setting of a NAAQS is different than that in CAA section 202(a) regarding endangerment. But the concepts are similar—the NAAQS are about setting standards at a level requisite to protect public health (with an adequate margin of safety) and public welfare, and endangerment is about whether the current or projected future levels may reasonably be anticipated to endanger public health or welfare. In other words, both decisions essentially are based on assessing the harm associated with a certain level of air pollution. Given this similarity in purpose, as well as the Court’s instructions in Massachusetts v. EPA that the Administrator should base her decision on the science, EPA reasonably interprets the statutory endangerment language to be analogous to setting the NAAQS. Therefore, it is reasonable to interpret the endangerment test as not requiring the consideration of the impacts of implementing the statute in the event of an endangerment finding as part of the endangerment finding itself.16 Moreover, EPA does not believe that the impact of regulation under the CAA as a whole, let alone that which will result from this particular endangerment finding, will lead to the panoply of adverse consequences that commenters predict. EPA has the ability to fashion a reasonable and common-sense approach to address greenhouse gas emissions and climate change. The Administrator thinks that EPA has and will continue to take a measured approach to address greenhouse gas emissions. For example, the Agency’s recent Mandatory Greenhouse Gas Reporting Rule focuses on only the largest sources of greenhouse gases in order to reduce the burden on smaller facilities.17 16 Indeed, some persons may argue that due to the similarities between setting a NAAQS and making an endangerment finding, EPA cannot consider the impacts of implementation of the statute. 17 Note that it is EPA’s current position that these Final Findings do not make well-mixed greenhouse gases ‘‘subject to regulation’’ for purposes of the CAA’s Prevention of Significant Deterioration (PSD) and title V programs. See, e.g., memorandum entitled ‘‘EPA’s Interpretation of Regulations that Determine Pollutants Covered By Federal Prevention of Significant Deterioration (PSD) Permit Program’’ (Dec. 18, 2008). While EPA is reconsidering this memorandum and is seeking VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 We also note that commenters’ approach also is another version of the argument that EPA must consider adaptation and mitigation in the endangerment determination. Just as EPA should consider whether mitigation would reduce endangerment, commenters argue we should consider whether mitigation would increase endangerment. But as discussed previously, EPA disagrees and believes its approach better achieves the goals of the statute. Finally, EPA simply disagrees with the commenter who argues that because we are better off now than before the industrial revolution, greenhouse gases cannot be found to endanger public health or welfare. As the DC Circuit noted in the Ethyl decision, ‘‘[m]an’s ability to alter his environment has developed far more rapidly than his ability to foresee with certainty the effects of his alterations.’’ See Ethyl Corp., 541 F.2d at 6. The fact that we as a society are better off now than 100 years ago, and that processes that produce greenhouse gases are a large part of this improvement, does not mean that those processes do not have unintended adverse impacts. It also was entirely reasonable for EPA to look at ‘‘emissions’’ as the pollution once it is emitted from the source into the air, and not also as the process that generates the pollution. Indeed, the definition of ‘‘air pollutant’’ talks in terms of substances ‘‘emitted into or otherwise enter[ing] the ambient air’’ (CAA section 302(g)). It is entirely appropriate for EPA to consider only the substance being emitted as the air pollution or air pollutant. IV. The Administrator’s Finding That Greenhouse Gases Endanger Public Health and Welfare The Administrator finds that elevated concentrations of greenhouse gases in public comment on the issues raised in it generally, including whether a final endangerment finding should trigger PSD, the effectiveness of the positions provided in the memorandum was not stayed pending that reconsideration. Prevention of Significant Deterioration (PSD): Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by the Federal PSD Permit Program, 74 FR 515135, 51543–44 (Oct. 7, 2009). In addition, EPA has proposed new temporary thresholds for greenhouse gas emissions that define when PSD and title V permits are required for new or existing facilities. Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (74 FR 55292, October 27, 2009). The proposed thresholds would ‘‘tailor’’ the permit programs to limit which facilities would be required to obtain PSD and title V permits. As noted in the preamble for the tailoring rule proposal, EPA also intends to evaluate ways to streamline the process for identifying GHG emissions control requirements and issuing permits. See the Response to Comments Document, Volume 11, and the Tailoring Rule, for more information. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 the atmosphere may reasonably be anticipated to endanger the public health and to endanger the public welfare of current and future generations. The Administrator is making this finding specifically with regard to six key directly-emitted, longlived and well-mixed greenhouse gases: Carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. The Administrator is making this judgment based on both current observations and projected risks and impacts into the future. Furthermore, the Administrator is basing this finding on impacts of climate change within the United States. However, the Administrator finds that when she considers the impacts on the U.S. population of risks and impacts occurring in other world regions, the case for endangerment to public health and welfare is only strengthened. A. The Air Pollution Consists of Six Key Greenhouse Gases The Administrator must define the scope and nature of the relevant air pollution for the endangerment finding under CAA section 202(a). In this final action, the Administrator finds that the air pollution is the combined mix of six key directly-emitted, long-lived and well-mixed greenhouse gases (henceforth ‘‘well-mixed greenhouse gases’’), which together, constitute the root cause of human-induced climate change and the resulting impacts on public health and welfare. These six greenhouse gases are carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. EPA received public comments on this definition of air pollution from the Proposed Findings, and summarizes responses to some of those key comments below; fuller responses to public comments can be found in EPA’s Response to Comments document, Volume 9. The Administrator acknowledges that other anthropogenic climate forcers also play a role in climate change. Many public comments either supported or opposed inclusion of other substances in addition to the six greenhouse gases for the definition of air pollution. EPA’s responses to those comments are also summarized below, and in volume 9 of the Response to Comments document. The Administrator explained her rationale for defining air pollution under CAA section 202(a) as the combined mix of the six greenhouse gases in the Proposed Findings. After review of the public comments, the Administrator is using the same definition of the air pollution in the E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations six gases are directly emitted as greenhouse gases rather than forming as a greenhouse gas in the atmosphere after emission of a pre-cursor gas. Given these properties, the magnitude of the warming effect of each of these gases is generally better understood than other climate forcing agents that do not share these same properties (addressed in more detail below). The ozone-depleting substances that include chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HFCs) also share the same physical attributes discussed here, but for reasons discussed throughout the remainder of this section are not being included in the Administrator’s definition of air pollution for this finding. 1. Common Physical Properties of the Six Greenhouse Gases The common physical properties relevant to the climate change problem shared by the six greenhouse gases include the fact that they are long-lived in the atmosphere. ‘‘Long-lived’’ is used here to mean that the gas has a lifetime in the atmosphere sufficient to become globally well mixed throughout the entire atmosphere, which requires a minimum atmospheric lifetime of about one year.18 Thus, this definition of air pollution is global in nature because the greenhouse gas emissions emitted from the United States (or from any other region of the world) become globally well mixed, such that it would not be meaningful to define the air pollution as the greenhouse gas concentrations over the United States as somehow being distinct from the greenhouse gas concentrations over other regions of the world. It is also well established that each of these gases can exert a warming effect on the climate by trapping in heat that would otherwise escape to space. These erowe on DSK5CLS3C1PROD with RULES4 final finding, for the following reasons: (1) These six greenhouse gas share common properties regarding their climate effects; (2) these six greenhouse gases have been estimated to be the primary cause of human-induced climate change, are the best understood drivers of climate change, and are expected to remain the key driver of future climate change; (3) these six greenhouse gases are the common focus of climate change science research and policy analyses and discussions; (4) using the combined mix of these gases as the definition (versus an individual gas-by-gas approach) is consistent with the science, because risks and impacts associated with greenhouse gas-induced climate change are not assessed on an individual gas approach; and (5) using the combined mix of these gases is consistent with past EPA practice, where separate substances from different sources, but with common properties, may be treated as a class (e.g., oxides of nitrogen). The latest assessment of the USGCRP, as summarized in EPA’s TSD, confirms the evidence presented in the Proposed Findings that current atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels as a result of both historic and current anthropogenic emissions. The global atmospheric carbon dioxide concentration has increased about 38 percent from preindustrial levels to 2009, and almost all of the increase is due to anthropogenic emissions. The global atmospheric concentration of methane has increased by 149 percent since pre-industrial levels (through 2007); and the nitrous oxide concentration has increased 23 percent (through 2007). The observed concentration increase in these gases can also be attributed primarily to anthropogenic emissions. The industrial fluorinated gases have relatively low concentrations, but these concentrations have also been increasing and are almost entirely anthropogenic in origin. Historic data show that current atmospheric concentrations of the two most important directly emitted, longlived greenhouse gases (carbon dioxide and methane) are well above the natural range of atmospheric concentrations compared to at least the last 650,000 years. Atmospheric greenhouse gas concentrations have been increasing because anthropogenic emissions are outpacing the rate at which greenhouse gases are removed from the atmosphere by natural processes over timescales of decades to centuries. It also remains clear that these high atmospheric concentrations of greenhouse gases are 18 The IPCC also refers to these six GHGs as longlived. Methane has an atmospheric lifetime of roughly a decade. One of the most commonly used hydrofluorocarbons (HFC–134a) has a lifetime of 14 years. Nitrous oxide has a lifetime of 114 years; sulfur hexafluoride over 3,000 years; and some PFCs up to 10,000 to 50,000 years. Carbon dioxide in the atmosphere is sometimes approximated as having a lifetime of roughly 100 years, but for a given amount of carbon dioxide emitted a better description is that some fraction of the atmospheric increase in concentration is quickly absorbed by the oceans and terrestrial vegetation, some fraction of the atmospheric increase will only slowly decrease over a number of years, and a small portion of the increase will remain for many centuries or more. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 2. Evidence That the Six Greenhouse Gases Are the Primary Driver of Current and Projected Climate Change a. Key Observations Driven Primarily by the Six Greenhouse Gases PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 66517 the unambiguous result of human activities. Together the six well-mixed greenhouse gases constitute the largest anthropogenic driver of climate change.19 Of the total anthropogenic heating effect caused by the accumulation of the six well-mixed greenhouse gases plus other warming agents (that do not meet all of the Administrator’s criteria that pertain to the six greenhouse gases) since preindustrial times, the combined heating effect of the six well-mixed greenhouses is responsible for roughly 75 percent, and it is expected that this share may grow larger over time, as discussed below. Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level. Global mean surface temperatures have risen by 0.74 °C (1.3 °F) (±0.18 °C) over the last 100 years. Eight of the 10 warmest years on record have occurred since 2001. Global mean surface temperature was higher during the last few decades of the 20th century than during any comparable period during the preceding four centuries. The global surface temperature record relies on three major global temperature datasets, developed by NOAA, NASA, and the United Kingdom’s Hadley Center. All three show an unambiguous warming trend over the last 100 years, with the greatest warming occurring over the past 30 years.20 Furthermore, all three datasets show that eight of the 10 warmest years on record have occurred since 2001; that the 10 warmest years have all occurred in the past 12 years; and that the 20 warmest years have all occurred since 1981. Though most of the warmest years on record have occurred in the last decade in all available datasets, the rate of warming has, for a short time in the 19 As summarized in EPA’s TSD, the global average net effect of the increase in atmospheric greenhouse gas concentrations, plus other human activities (e.g., land use change and aerosol emissions), on the global energy balance since 1750 has been one of warming. This total net heating effect, referred to as forcing, is estimated to be +1.6 (+0.6 to +2.4) Watts per square meter (W/m2), with much of the range surrounding this estimate due to uncertainties about the cooling and warming effects of aerosols. The combined radiative forcing due to the cumulative (i.e., 1750 to 2005) increase in atmospheric concentrations of CO2, CH4, and N2O is estimated to be +2.30 (+2.07 to +2.53) W/m2. The rate of increase in positive radiative forcing due to these three GHGs during the industrial era is very likely to have been unprecedented in more than 10,000 years. 20 See section 4 of the TSD for more detailed information about the three global temperature datasets. E:\FR\FM\15DER4.SGM 15DER4 66518 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations Hadley Center record, slowed. However, the NOAA and NASA trends do not show the same marked slowdown for the 1999–2008 period. Year-to-year fluctuations in natural weather and climate patterns can produce a period that does not follow the long-term trend. Thus, each year may not necessarily be warmer than every year before it, though the long-term warming trend continues.21 The scientific evidence is compelling that elevated concentrations of heattrapping greenhouse gases are the root cause of recently observed climate change. The IPCC conclusion from 2007 has been re-confirmed by the June 2009 USGCRP assessment that most of the observed increase in global average temperatures since the mid-20th century is very likely 22 due to the observed increase in anthropogenic greenhouse gas concentrations. Climate model simulations suggest natural forcing alone (e.g., changes in solar irradiance) cannot explain the observed warming. The attribution of observed climate change to anthropogenic activities is based on multiple lines of evidence. The first line of evidence arises from our basic physical understanding of the effects of changing concentrations of greenhouse gases, natural factors, and other human impacts on the climate system. The second line of evidence arises from indirect, historical estimates of past climate changes that suggest that the changes in global surface temperature over the last several decades are unusual.23 The third line of evidence arises from the use of computer-based climate models to simulate the likely patterns of response of the climate system to different forcing mechanisms (both natural and anthropogenic). The claim that natural internal variability or known natural external 21 Karl T. et al., (2009). IPCC Fourth Assessment Report uses specific terminology to convey likelihood and confidence. Likelihood refers to a probability that the statement is correct or that something will occur. ‘‘Virtually certain’’ conveys greater than 99 percent probability of occurrence; ‘‘very likely’’ 90 to 99 percent; ‘‘likely’’ 66 to 90 percent. IPCC assigns confidence levels as to the correctness of a statement. ‘‘Very high confidence’’ conveys at least 9 out of 10 chance of being correct; ‘‘high confidence’’ about 8 out of 10 chance; ‘‘medium confidence’’ about 5 out of 10 chance. The USGCRP uses the same or similar terminology in its reports. See also Box 1.2 of the TSD. Throughout this document, this terminology is used in conjunction with statements from the IPCC and USGCRP reports to convey the same meaning that those reports intended. In instances where a word such as ‘‘likely’’ may appear outside the context of a specific IPCC or USGCRP statement, it is not meant to necessarily convey the same quantitative meaning as the IPCC terminology. 23 Karl T. et al. (2009). erowe on DSK5CLS3C1PROD with RULES4 22 The VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 forcings can explain most (more than half) of the observed global warming of the past 50 years is inconsistent with the vast majority of the scientific literature, which has been synthesized in several assessment reports. Based on analyses of widespread temperature increases throughout the climate system and changes in other climate variables, the IPCC has reached the following conclusions about external climate forcing: ‘‘It is extremely unlikely (<5 percent) that the global pattern of warming during the past half century can be explained without external forcing, and very unlikely that it is due to known natural external causes alone’’ (Hegerl et al., 2007). With respect to internal variability, the IPCC reports the following: ‘‘The simultaneous increase in energy content of all the major components of the climate system as well as the magnitude and pattern of warming within and across the different components supports the conclusion that the cause of the [20th century] warming is extremely unlikely (<5 percent) to be the result of internal processes’’ (Hegerl et al., 2007). As noted in the TSD, the observed warming can only be reproduced with models that contain both natural and anthropogenic forcings, and the warming of the past half century has taken place at a time when known natural forcing factors alone (solar activity and volcanoes) would likely have produced cooling, not warming. United States temperatures also warmed during the 20th and into the 21st century; temperatures are now approximately 0.7 °C (1.3 °F) warmer than at the start of the 20th century, with an increased rate of warming over the past 30 years. Both the IPCC and CCSP reports attributed recent North American warming to elevated greenhouse gas concentrations. The CCSP (2008g) report finds that for North America, ‘‘more than half of this warming [for the period 1951–2006] is likely the result of human-caused greenhouse gas forcing of climate change.’’ Observations show that changes are occurring in the amount, intensity, frequency, and type of precipitation. Over the contiguous United States, total annual precipitation increased by 6.1 percent from 1901–2008. It is likely that there have been increases in the number of heavy precipitation events within many land regions, even in those where there has been a reduction in total precipitation amount, consistent with a warming climate. There is strong evidence that global sea level gradually rose in the 20th century and is currently rising at an PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 increased rate. It is very likely that the response to anthropogenic forcing contributed to sea level rise during the latter half of the 20th century. It is not clear whether the increasing rate of sea level rise is a reflection of short-term variability or an increase in the longerterm trend. Nearly all of the Atlantic Ocean shows sea level rise during the last 50 years with the rate of rise reaching a maximum (over 2 mm per year) in a band along the U.S. east coast running east-northeast. Satellite data since 1979 show that annual average Arctic sea ice extent has shrunk by 4.1 percent per decade. The size and speed of recent Arctic summer sea ice loss is highly anomalous relative to the previous few thousands of years. Widespread changes in extreme temperatures have been observed in the last 50 years across all world regions including the United States. Cold days, cold nights, and frost have become less frequent, while hot days, hot nights, and heat waves have become more frequent. Observational evidence from all continents and most oceans shows that many natural systems are being affected by regional climate changes, particularly temperature increases. However, directly attributing specific regional changes in climate to emissions of greenhouse gases from human activities is difficult, especially for precipitation. Ocean carbon dioxide uptake has lowered the average ocean pH (increased the acidity) level by approximately 0.1 since 1750. Consequences for marine ecosystems may include reduced calcification by shell-forming organisms, and in the longer term, the dissolution of carbonate sediments. Observations show that climate change is currently affecting U.S. physical and biological systems in significant ways. The consistency of these observed changes in physical and biological systems and the observed significant warming likely cannot be explained entirely due to natural variability or other confounding nonclimate factors. b. Key Projections Based Primarily on Future Scenarios of the Six Greenhouse Gases There continues to be no reason to expect that, without substantial and near-term efforts to significantly reduce emissions, atmospheric levels of greenhouse gases will not continue to climb, and thus lead to ever greater rates of climate change. Given the long atmospheric lifetime of the six greenhouse gases, which range from roughly a decade to centuries, future atmospheric greenhouse gas E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations concentrations for the remainder of this century and beyond will be influenced not only by future emissions but indeed by present-day and near-term emissions. Consideration of future plausible scenarios, and how our current greenhouse gas emissions essentially commit present and future generations to cope with an altered atmosphere and climate, reinforces the Administrator’s judgment that it is appropriate to define the combination of the six key greenhouse gases as the air pollution. Most future scenarios that assume no explicit greenhouse gas mitigation actions (beyond those already enacted) project increasing global greenhouse gas emissions over the century, which in turn result in climbing greenhouse gas concentrations. Under the range of future emission scenarios evaluated by the assessment literature, carbon dioxide is expected to remain the dominant anthropogenic greenhouse gas, and thus driver of climate change, over the course of the 21st century. In fact, carbon dioxide is projected to be the largest contributor to total radiative forcing in all periods and the radiative forcing associated with carbon dioxide is projected to be the fastest growing. For the year 2030, projections of the six greenhouse gases show an increase of 25 to 90 percent compared with 2000 emissions. Concentrations of carbon dioxide and the other well-mixed gases increase even for those scenarios where annual emissions toward the end of the century are assumed to be lower than current annual emissions. The radiative forcing associated with the non-carbon dioxide well-mixed greenhouse gases is still important and increasing over time. Emissions of the ozone-depleting substances are projected to continue decreasing due to the phase-out schedule under the Montreal Protocol on Substances that Deplete the Ozone Layer. Considerable uncertainties surround the estimates and future projections of anthropogenic aerosols; future atmospheric concentrations of aerosols, and thus their respective heating or cooling effects, will depend much more on assumptions about future emissions because of their short atmospheric lifetimes compared to the six well-mixed greenhouse gases. Future warming over the course of the 21st century, even under scenarios of low emissions growth, is very likely to be greater than observed warming over the past century. According to climate model simulations summarized by the IPCC, through about 2030, the global warming rate is affected little by the choice of different future emission scenarios. By the end of the century, projected average global warming VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 (compared to average temperature around 1990) varies significantly depending on emissions scenario and climate sensitivity assumptions, ranging from 1.8 to 4.0 °C (3.2 to 7.2 °F), with an uncertainty range of 1.1 to 6.4 °C (2.0 to 11.5 °F). All of the United States is very likely to warm during this century, and most areas of the United States are expected to warm by more than the global average. The largest warming is projected to occur in winter over northern parts of Alaska. In western, central and eastern regions of North America, the projected warming has less seasonal variation and is not as large, especially near the coast, consistent with less warming over the oceans. 3. The Six Greenhouse Gases Are Currently the Common Focus of the Climate Change Science and Policy Communities The well-mixed greenhouse gases are currently the common focus of climate science and policy analyses and discussions. For example, the United Nations Framework Convention on Climate Change (UNFCCC), signed and ratified by the United States in 1992, requires its signatories to ‘‘develop, periodically update, publish and make available * * * national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies * * *’’ 24 25 To date, the focus of UNFCCC actions and discussions has been on the six greenhouse gases that are the same focus of these Findings. Because of these common properties, it has also become common practice to compare these gases on a carbon dioxide equivalent basis, based on each gas’s warming effect relative to carbon dioxide (the designated reference gas) over a specified timeframe. For example, both the annual Inventory of U.S. Greenhouse Gases and Sinks published by EPA and the recently finalized EPA Mandatory Greenhouse Gas Reporting Rule (74 FR 56260), use the carbon dioxide equivalent metric to 24 Due to the cumulative purpose of the statutory language, even if the Administrator were to look at the atmospheric concentration of each greenhouse gas individually, she would still consider the impact of the concentration of a single greenhouse gas in combination with that caused by the other greenhouse gases. 25 The range of uncertainty in the current magnitude of black carbon’s climate forcing effect is evidenced by the ranges presented by the IPCC Fourth Assessment Report (2007) and the more recent study by Ramanathan, V. and Carmichael, G. (2008) Global and regional climate changes due to black carbon. Nature Geoscience, 1(4): 221–227. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 66519 sum and compare these gases, and thus accept the common climate-relevant properties of these gases for their treatment as a group. This is also common practice internationally as the UNFCCC reporting guidelines for developed countries, and the Clean Development Mechanism procedures for developing countries both require the use of global warming potentials published by the IPCC to convert the six greenhouse gases into their respective carbon dioxide equivalent units. 4. Defining Air Pollution as the Aggregate Group of Six Greenhouse Gases Is Consistent With Evaluation of Risks and Impacts Due to HumanInduced Climate Change Because the well-mixed greenhouse gases are collectively the primary driver of current and projected human-induced climate change, all current and future risks due to human-induced climate change—whether these risks are associated with increases in temperature, changes in precipitation, a rise in sea levels, changes in the frequency and intensity of weather events, or more directly with the elevated greenhouse gas concentrations themselves—can be associated with this definition of air pollution. 5. Defining the Air Pollution as the Aggregate Group of Six Greenhouse Gases Is Consistent With Past EPA Practice Treating the air pollution as the aggregate of the well-mixed greenhouse gases is consistent with other provisions of the CAA and previous EPA practice under the CAA, where separate emissions from different sources but with common properties may be treated as a class (e.g., particulate matter (PM)). This approach addresses the total, cumulative effect that the elevated concentrations of the six well-mixed greenhouse gases have on climate, and thus on different elements of health, society and the environment.24 EPA treats, for example, PM as a common class of air pollution; PM is a complex mixture of extremely small particles and liquid droplets. Particle pollution is made up of a number of components, including acids (such as nitrates and sulfates), organic chemicals, metals, and soil or dust particles. 6. Other Climate Forcers Not Being Included in the Definition of Air Pollution for This Finding Though the well-mixed greenhouse gases that make up the definition of air pollution for purposes of making the endangerment decision under CAA section 202(a) constitute the primary E:\FR\FM\15DER4.SGM 15DER4 66520 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations finding and regulate black carbon emissions. driver of human-induced climate change, there are other substances emitted from human activities that contribute to climate change and deserve careful attention, but are not being included in the air pollution definition for this particular action. These substances are discussed immediately below. erowe on DSK5CLS3C1PROD with RULES4 a. Black Carbon Several commenters request that black carbon be included in the definition of air pollution because of its warming effect on the climate. Black carbon is not a greenhouse gas, rather, it is an aerosol particle that results from the incomplete combustion of carbon contained in fossil fuels and biomass, and remains in the atmosphere for only about a week. Unlike any of the greenhouse gases being addressed by this action, black carbon is a component of particulate matter (PM), where PM is a criteria air pollutant under section 108 of the CAA. The extent to which black carbon makes up total PM varies by emission source, where, for example, diesel vehicle PM emissions contain a higher fraction of black carbon compared to most other PM emission sources. Black carbon causes a warming effect primarily by absorbing incoming and reflected sunlight (whereas greenhouse gases cause warming by trapping outgoing, infrared heat), and by darkening bright surfaces such as snow and ice, which reduces reflectivity. This latter effect, in particular, has been raising concerns about the role black carbon may be playing in observed warming and ice melt in the Arctic. As stated in the April 2009 Proposed Findings, there remain some significant scientific uncertainties about black carbon’s total climate effect,25 as well as concerns about how to treat the shortlived black carbon emissions alongside the long-lived, well-mixed greenhouse gases in a common framework (e.g., what are the appropriate metrics to compare the warming and/or climate effects of the different substances, given that, unlike greenhouse gases, the magnitude of aerosol effects can vary immensely with location and season of emissions). Nevertheless, the Administrator recognizes that black carbon is an important climate forcing agent and takes very seriously the emerging science on black carbon’s contribution to global climate change in general and the high rates of observed climate change in the Arctic in particular. As noted in the Proposed Findings, EPA has various pending petitions under the CAA calling on the Agency to make an endangerment VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 b. Other Climate Forcers There are other climate forcers that play a role in human-induced climate change that were mentioned in the Proposed Findings, and were the subject of some public comments. These include the stratospheric ozonedepleting substances, nitrogen trifluoride (NF3), water vapor, and tropospheric ozone. As mentioned above, the ozonedepleting substances (CFCs and HCFCs) do share the same physical, climaterelevant attributes as the six well-mixed greenhouse gases; however, emissions of these substances are playing a diminishing role in human-induced climate change. They are being controlled and phased out under the Montreal Protocol on Substances that Deplete the Ozone Layer. Because of this, the major scientific assessment reports such as those from IPCC focus primarily on the same six well-mixed greenhouse gases included in the definition of air pollution in these Findings. It is also worth noting that the UNFCCC, to which the United States is a signatory, addresses ‘‘all greenhouse gases not controlled by the Montreal Protocol.’’ 26 One commenter noted that because the Montreal Protocol controls production and consumption of ozonedepleting substances, but not existing banks of the substances, that CFCs should be included in the definition of air pollution in this finding, which might, in turn, create some future action under the CAA to address the banks of ozone-depleting substances as a climate issue. However, the primary criteria for defining the air pollution in this finding is the focus on the core of the climate change problem, and concerns over future actions to control depletion of stratospheric ozone are separate from and not central to the air pollution causing climate change. Nitrogen trifluoride also shares the same climate-relevant attributes as the six well-mixed greenhouse gases, and it is also included in EPA’s Mandatory Greenhouse Gas Reporting Rule (FR 74 56260). However, the Administrator is maintaining the reasoning laid out in the Proposed Findings to not include NF3 in the definition of air pollution for this finding because the overall magnitude of its forcing effect on climate is not yet well quantified. EPA will continue to track the science on NF3. A number of public comments question the exclusion of water vapor 26 UNFCCC, PO 00000 Art. 4.1(b). Frm 00026 Fmt 4701 Sfmt 4700 from the definition of air pollution because it is the most important greenhouse gas responsible for the natural, background greenhouse effect. The Administrator’s reasoning for excluding water vapor, was described in the Proposed Findings and is summarized here with additional information in Volume 10 of the Response to Comments document. First, climate change is being driven by the buildup in the atmosphere of greenhouse gases. The direct emissions primarily responsible for this are the six well-mixed greenhouse gases. Direct anthropogenic emissions of water vapor, in general, have a negligible effect and are thus not considered a primary driver of human-induced climate change. EPA plans to further evaluate the issues of emissions of water that are implicated in the formation of contrails and also changes in water vapor due to local irrigation. At this time, however, the findings of the IPCC state that the total forcing from these sources is small and that the level of understanding is low. Water produced as a byproduct of combustion at low altitudes has a negligible contribution to climate change. The residence time of water vapor is very short (days) and the water content of the air in the long term is a function of temperature and partial pressure, with emissions playing no role. Additionally, the radiative forcing of a given mass of water at low altitudes is much less than the same mass of carbon dioxide. Water produced at higher altitudes could potentially have a larger impact. The IPCC estimated the contribution of changes in stratospheric water vapor due to methane and other sources, as well as high altitude contributions from contrails, but concluded that both contributions were small, with a low level of understanding. The report also addressed anthropogenic contributions to water vapor arising from large scale irrigation, but assigned it a very low level of understanding, and suggested that the cooling from evaporation might outweigh the warming from its small radiative contribution. Increases in tropospheric ozone concentrations have exerted a significant anthropogenic warming effect since pre-industrial times. However, as explained in the Proposed Findings, tropospheric ozone is not a long-lived, well-mixed greenhouse gas, and it is not directly emitted. Rather it forms in the atmosphere from emissions of pre-cursor gases. There is increasing attention in climate change research and the policy community about the extent to which further reductions in tropospheric ozone levels may help E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations slow down climate change in the near term. The Administrator views this issue seriously but maintains that tropospheric ozone is sufficiently different such that it deserves an evaluation and treatment separate from this finding. 7. Summary of Key Comments on Definition of Air Pollution erowe on DSK5CLS3C1PROD with RULES4 a. It Is Reasonable for the Administrator To Define the Air Pollution as Global Concentrations of the Well-Mixed Greenhouse Gases Many commenters argue that EPA does not have the authority to establish domestic rights and obligations based on environmental conditions that are largely attributed to foreign nations and entities that are outside the jurisdiction of EPA under the CAA. They contend that in this case, the bulk of emissions that would lead to mandatory emissions controls under the CAA would not and could not be regulated under the CAA. They state that CAA requirements cannot be enforced against foreign sources of air pollution, and likewise domestic obligations under the CAA cannot be caused by foreign emissions that are outside the United States. The commenters argue that EPA committed procedural error by not addressing this legal issue of authority in the proposal. Commenters cite no statutory text or judicial authority for this argument, and instead rely entirely on an analogy to the issues concerning the exercise of extra-territorial jurisdiction. The text of CAA section 202(a), however, does not support this claim. Nothing in CAA section 202(a) limits the term air pollution to those air pollution matters that are caused solely or in large part by domestic emissions. The only issue under CAA section 202(a) is whether the air pollution is reasonably anticipated to endanger, and whether emissions from one domestic source category—new motor vehicles—cause or contribute to this air pollution. Commenters would read into this an additional cause or contribute test— whether foreign sources cause or contribute to the air pollution in such a way that the air pollution is largely attributable to the foreign emissions, or the bulk of emissions causing the air pollution are from foreign sources. There is no such provision in CAA section 202(a). Congress was explicit about the contribution test it imposed, and the only source that is relevant for purposes of contribution is new motor vehicles. Commenters suggest an illdefined criterion that is not in the statute. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 In addition, as discussed in Section II of these Findings, Congress intentionally meant the agency to judge the air pollution endangerment criteria based on the ‘‘cumulative impact of all sources of a pollutant,’’ and not an incremental look at just the endangerment from a subset of sources. Commenters’ arguments appear to lead to this result. Under the commenters’ approach, in those cases where the bulk of emissions which form the air pollution come from foreign sources, EPA apparently would have no authority to make an endangerment finding. Logically, EPA would be left with the option of identifying and evaluating the air pollution attributable to domestic sources alone, and determining whether that narrowly defined form of air pollution endangers public health or welfare. This is the kind of unworkable, incremental approach that was rejected by the court in Ethyl and by Congress in the 1977 amendments adopting this provision. The analogy to extra-territorial jurisdiction is also not appropriate. The endangerment finding itself does not exercise jurisdiction over any source, domestic or foreign. It is a judgment that is a precondition for exercising regulatory authority. Under CAA section 202(a), any exercise of regulatory authority following from this endangerment finding would be for new motor vehicles either manufactured in the United States or imported into the United States. There would be no extraterritorial exercise of jurisdiction. The core issues for endangerment focus on impacts inside the United States, not outside the United States. In addition, the contribution finding is based solely on the contribution from new motor vehicles built in or imported to the United States. The core judgments that need to be made under CAA section 202(a) are all focused on actions and impacts inside the United States. This does not raise any concerns about an extra-territorial exercise of jurisdiction. The basis for the endangerment and contribution findings is fully consistent with the principles underlying the desire to avoid exercises of extraterritorial jurisdiction. Any limitations on the ability to exercise control over foreign sources of emissions does not, however, call into question the authority under CAA section 202 to exercise control over domestic sources of emissions based on their contribution to an air pollution problem that is judged to endanger public health or welfare based on impacts occurring in the United States or otherwise affecting the United States and its citizens. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 66521 In essence, commenters are concerned about the effectiveness of the domestic control strategies that can be adopted to address a global air pollution problem that is caused only in part by domestic sources of emissions. While that is a quite valid and important policy concern, it does not translate into a legal limitation on EPA’s authority to make an endangerment finding. Neither the text nor the legislative history of CAA section 202(a) support such an interpretation and Congress explicitly separated the decision on endangerment from the decision on what controls are required or appropriate once an affirmative endangerment finding has been made. The effectiveness of the resulting regulatory controls is not a relevant factor to determining endangerment. EPA also committed no procedural flaw as argued by commenters. The proposal fully explored the interpretation of endangerment and cause or contribution under CAA section 202(a), and was very clear that EPA was considering air pollution to mean the elevated global concentration of greenhouse gases in the atmosphere, recognizing that these atmospheric concentrations were the result of world wide emissions, not just or even largely U.S. emissions. The separation of the effectiveness of the control strategy from the endangerment criteria, and the need to consider the cumulative impact of all sources in evaluating endangerment was clearly discussed. Commenters received fair notice of EPA’s proposal and the basis for it. Similarly, some commenters argue that EPA’s proposal defines air pollution as global air pollution, but EPA is limited to evaluating domestic air only; in other words that EPA may only regulate domestic emissions with localized effects. They argue this limitation derives from the purpose of the CAA—to enhance the quality of the Nation’s air resources, recognizing that air pollution prevention and control focus on the sources of the emissions, and are the primary responsibility of States and local governments. Therefore, commenters continue, that ‘‘air pollution’’ has to be air pollution that originates domestically and is to be addressed only at the domestic source. Sections 115 and 179B of the CAA, as discussed below, reflect this intention as well. The result, they conclude, is that ‘‘air pollution’’ as used in CAA section 202(a), includes only pollution that originates domestically, where the effects occur locally. They argue EPA has improperly circumvented this by a ‘‘local-global-local’’ analysis that injects E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66522 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations global air pollution into the middle of the endangerment test. The statutory arguments made by the commenters attempt to read an unrealistic limitation into the general provisions discussed. The issues are similar in nature to those raised by the commenters arguing that EPA has no authority to establish domestic rights and obligations based on environmental conditions that are largely attributable to emissions from foreign nations and entities that are outside the jurisdiction of EPA under the CAA. In both cases, the question is whether EPA has authority to make an endangerment finding when the air pollution of concern is a relatively homogenous atmospheric concentration of greenhouse gases. According to the commenters, although this global pool includes the air over the United States, and leads to impacts in the United States and on the U.S. population, Congress prohibited EPA from addressing this air pollution problem because of its global aspects. The text of the CAA does not specifically address this, as the term air pollution is not defined. EPA interprets this term as including the air pollution problem involved in this case—elevated atmospheric concentration of greenhouse gases that occur in the air above the United States as well as across the globe, and where this pool of global gases leads to impacts in the United States and on the U.S. population. This is fully consistent with the statutory provisions discussed by commenters. This approach seeks to protect the Nation’s air resources, as clearly the Nation’s air resources are an integral part of this global pool. The Nation’s air resources by definition are not an isolated atmosphere that only contains molecules emitted within the United States, or an atmosphere that bears no relationship to the rest of the globe’s atmosphere. There is no such real world body of air. Protecting the Nation’s resources of clean air means to protect the air in the real world, not an artificial construct of ‘‘air’’ that ignores the many situations where the air over our borders includes compounds and pollutants emitted outside our borders, and in this case to ignore the fact that the air over our borders will by definition have elevated concentrations of greenhouse gases only when the air around the globe also has such concentrations. The suggested narrow view of ‘‘air pollution’’ does not further the protection of the Nation’s air resources, but instead attempts to limit such protection by defining these resources in a scientifically artificial way that does not comport with how the air in VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 the atmosphere is formed or changes over time, how it relates to and interacts with air around the globe, and how the result of this can affect the U.S. population. The approach suggested by commenters fails to provide an actual definition for EPA to follow—for example, would U.S. or domestic ‘‘air pollution’’ be limited to only those air concentrations composed of molecules that originated in the United States? Is there a degree of external gases or compounds that could be allowed? Would it ignore the interaction and relationship between the air over the U.S. borders and the air around the rest of the globe? The latter approach appears to be the one suggested by commenters. Commenters’ approach presumably would call for EPA to only consider the effects that derive solely from the air over our borders, and to ignore any effects that occur within the United States that are caused by air around the globe. However the air over the United States will by definition affect climate change only in circumstances where the air around the world is also doing so. The impacts of the air over the United States cannot be assessed separately from the impacts from the global pool, as they occur together and work together to affect the climate. Ignoring the real world nature of the Nation’s air resources, in the manner presumably suggested by the commenters, would involve the kind of unworkable, incremental, and artificially isolating approach that was rejected by the court in Ethyl and by Congress in 1977. Congress intended EPA to interpret this provision by looking at air pollutants and air pollution problems in a broad manner, not narrowly, to evaluate problems within their broader context and not to attempt to isolate matters in an artificial way that fails to account for the real world context that lead to health and welfare impacts on the public. Commenters’ suggested interpretation fails to implement this intention of Congress. Commenters in various places refer to the control of the pollution, and the need for it to be aimed at local sources. That is addressed in the standard setting portion of CAA section 202(a), as in other similar provisions. The endangerment provision does not address how the air pollution problem should be addressed—who should be regulated and how they should be regulated. The endangerment provision addresses a different issue—is there an air pollution problem that should be addressed? In that context, EPA rejects the artificially narrow interpretation PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 suggested by the commenters, and believes its broader interpretation in this case is reasonable and consistent with the intention of Congress. b. Consideration of Greenhouse Gases as Air Pollution Given Their Impact Is Through Climate Rather Than Direct Toxic Effects A number of commenters argue that carbon dioxide and the other greenhouse gases should not be defined as the air pollution because these gases do not cause direct human health effects, such as through inhalation. Responses to such comments are summarized in Section IV.B.1 of these Findings in the discussion of the public health and welfare nature of the endangerment finding. c. The Administrator’s Reliance on the Global Temperature Data Is a Reasonable Indicator of Human-Induced Climate Change We received many comments suggesting global temperatures have stopped warming. The commenters base this conclusion on temperature trends over only the last decade. While there have not been strong trends over the last seven to ten years in global surface temperature or lower troposphere temperatures measured by satellites, this pause in warming should not be interpreted as a sign that the Earth is cooling or that the science supporting continued warming is in error. Year-toyear variability in natural weather and climate patterns make it impossible to draw any conclusions about whether the climate system is warming or cooling from such a limited analysis. Historical data indicate short-term trends in longterm time series occasionally run counter to the overall trend. All three major global surface temperature records show a continuation of longterm warming. Over the last century, the global average temperature has warmed at the rate of about 0.13 °F (0.072 °C) per decade in all three records. Over the last 30 years, the global average surface temperature has warmed by about 0.30 °F (0.17 °C) per decade. Eight of the 10 warmest years on record have occurred since 2001 and the 20 warmest years have all occurred since 1981. Satellite measurements of the troposphere also indicate warming over the last 30 years at a rate of 0.20 to 0.27 °F (0.11 °C to 0.15 °C) per decade. Please see the relevant volume of the Response to Comments document for more detailed responses. Some commenters indicate the global surface temperature records are biased by urbanization, poor siting of instruments, observation methods, and E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 other factors. Our review of the literature suggests that these biases have in many cases been corrected for, are largely random where they remain, and therefore cancel out over large regions. Furthermore, we note that though the three global surface temperature records use differing techniques to analyze much of the same data, they produce almost the same results, increasing our confidence in their legitimacy. The assessment literature has concluded that warming of the climate system is unequivocal. The warming trend that is evident in all of the temperature records is confirmed by other independent observations, such as the melting of Arctic sea ice, the retreat of mountain glaciers on every continent, reductions in the extent of snow cover, earlier blooming of plants in the spring, and increased melting of the Greenland and Antarctic ice sheets. Please see the relevant volume of the Response to Comments document for more detailed responses. A number of commenters argue that the warmth of the late 20th century is not unusual relative to the past 1,000 years. They maintain temperatures were comparably warm during the Medieval Warm Period (MWP) centered around 1000 A.D. We agree there was a Medieval Warm Period in many regions but find the evidence is insufficient to assess whether it was globally coherent. Our review of the available evidence suggests that Northern Hemisphere temperatures in the MWP were probably between 0.1 °C and 0.2 °C below the 1961–1990 mean and significantly below the level shown by instrumental data after 1980. However, we note significant uncertainty in the temperature record prior to 1600 A.D. Please see the relevant volume of the Response to Comments document for more detailed responses. d. Ability To Attribute Observed Climate Change to Anthropogenic, WellMixed Greenhouse Gases Many commenters question the link between observed temperatures and anthropogenic greenhouse gas emissions. They suggest internal variability of the climate system and natural forcings explain observed temperature trends and that anthropogenic greenhouse gases play, at most, a minor role. However, the attribution of most of the recent warming to anthropogenic activities is based on multiple lines of evidence. The first line of evidence arises from our basic physical understanding of the effects of changing concentrations of greenhouse gases, natural factors, and other human impacts on the climate VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 system. Greenhouse gas concentrations have indisputably increased and their radiative properties are well established. The second line of evidence arises from indirect, historical estimates of past climate changes that suggest that the changes in global surface temperature over the last several decades are unusual. The third line of evidence arises from the use of computer-based climate models to simulate the likely patterns of response of the climate system to different forcing mechanisms (both natural and anthropogenic). These models are unable to replicate the observed warming unless anthropogenic emissions of greenhouse gases are included in the simulations. Natural forcing alone cannot explain the observed warming. In fact, the assessment literature 27 indicates the sum of solar and volcanic forcing in the past half century would likely have produced cooling, not warming. Please see the relevant volume of the Response to Comments for more detailed responses. B. The Air Pollution Is Reasonably Anticipated To Endanger Both Public Health and Welfare The Administrator finds that the elevated atmospheric concentrations of the well-mixed greenhouse gases may reasonably be anticipated to endanger the public health and welfare of current and future generations. This section describes the major pieces of scientific evidence supporting the Administrator’s endangerment finding, discusses both the public health and welfare nature of the endangerment finding, and addresses a number of key issues the Administrator considered when evaluating the state of the science as well as key public comments on the Proposed Findings. Additional detail can be found in the TSD and the Response to Comments document. As described in Section II of these Findings, the endangerment test under CAA section 202(a) does not require the Administrator to identify a bright line, quantitative threshold above which a 27 Solomon, S., D. Qin, M. Manning, R.B. Alley, T. Berntsen, N.L. Bindoff, Z. Chen, A. Chidthaisong, J.M. Gregory, G.C. Hegerl, M. Heimann, B. Hewitson, B.J. Hoskins, F. Joos, J. Jouzel, V. Kattsov, U. Lohmann, T. Matsuno, M. Molina, N. Nicholls, J. Overpeck, G. Raga, V. Ramaswamy, J. Ren, M. Rusticucci, R. Somerville, T.F. Stocker, P. Whetton, R.A. Wood and D. Wratt (2007) Technical Summary. In: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor, and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. Karl, T. et al. (2009). PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 66523 positive endangerment finding can be made. The statutory language explicitly calls upon the Administrator to use her judgment. This section describes the general approach used by the Administrator in reaching the judgment that a positive endangerment finding should be made, as well as the specific rationale for finding that the greenhouse gas air pollution may reasonably be anticipated to endanger both public health and welfare. First, the Administrator finds the scientific evidence linking human emissions and resulting elevated atmospheric concentrations of the six well-mixed greenhouse gases to observed global and regional temperature increases and other climate changes to be sufficiently robust and compelling. This evidence is briefly explained in more detail in Section V of these Findings. The Administrator recognizes that the climate change associated with elevated atmospheric concentrations of carbon dioxide and the other well-mixed greenhouse gases have the potential to affect essentially every aspect of human health, society and the natural environment. The Administrator is therefore not limiting her consideration of potential risks and impacts associated with human emissions of greenhouse gases to any one particular element of human health, sector of the economy, region of the country, or to any one particular aspect of the natural environment. Rather, the Administrator is basing her finding on the total weight of scientific evidence, and what the science has to say regarding the nature and potential magnitude of the risks and impacts across all climate-sensitive elements of public health and welfare, now and projected out into the foreseeable future. The Administrator has considered the state of the science on how human emissions and the resulting elevated atmospheric concentrations of wellmixed greenhouse gases may affect each of the major risk categories, i.e., those that are described in the TSD, which include human health, air quality, food production and agriculture, forestry, water resources, sea level rise and coastal areas, the energy sector, infrastructure and settlements, and ecosystems and wildlife. The Administrator understands that the nature and potential severity of impacts can vary across these different elements of public health and welfare, and that they can vary by region, as well as over time. The Administrator is therefore aware that, because human-induced climate change has the potential to be farreaching and multi-dimensional, not all E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66524 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations risks and potential impacts can be characterized with a uniform level of quantification or understanding, nor can they be characterized with uniform metrics. Given this variety in not only the nature and potential magnitude of risks and impacts, but also in our ability to characterize, quantify and project into the future such impacts, the Administrator must use her judgment to weigh the threat in each of the risk categories, weigh the potential benefits where relevant, and ultimately judge whether these risks and benefits, when viewed in total, are judged to be endangerment to public health and/or welfare. This has a number of implications for the Administrator’s approach in assessing the nature and magnitude of risk and impacts across each of the risk categories. First, the Administrator has not established a specific threshold metric for each category of risk and impacts. Also, the Administrator is not necessarily placing the greatest weight on those risks and impacts which have been the subject of the most study or quantification. Part of the variation in risks and impacts is the fact that climbing atmospheric concentrations of greenhouse gases and associated temperature increases can bring about some potential benefits to public health and welfare in addition to adverse risks. The current understanding of any potential benefits associated with human-induced climate change is described in the TSD and is taken into consideration here. The potential for both adverse and beneficial effects are considered, as well as the relative magnitude of such effects, to the extent that the relative magnitudes can be quantified or characterized. Furthermore, given the multiple ways in which the buildup of atmospheric greenhouse gases can cause effects (e.g., via elevated carbon dioxide concentrations, via temperature increases, via precipitation increases, via sea level rise, and via changes in extreme events), these multiple pathways are considered. For example, elevated carbon dioxide concentrations may be beneficial to crop yields, but changes in temperature and precipitation may be adverse and must also be considered. Likewise, modest temperature increases may have some public health benefits as well as harms, and other pathways such as changes in air quality and extreme events must also be considered. The Administrator has balanced and weighed the varying risks and effects for each sector. She has judged whether there is a pattern across the sector that VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 supports or does not support an endangerment finding, and if so whether the support is of more or less weight. In cases where there is both a potential for benefits and risks of harm, the Administrator has balanced these factors by determining whether there appears to be any directional trend in the overall evidence that would support placing more weight on one than the other, taking into consideration all that is known about the likelihood of the various risks and effects and their seriousness. In all of these cases, the judgment is largely qualitative in nature, and is not reducible to precise metrics or quantification. Regarding the timeframe for the endangerment test, it is the Administrator’s view that both current and future conditions must be considered. The Administrator is thus taking the view that the endangerment period of analysis extend from the current time to the next several decades, and in some cases to the end of this century. This consideration is also consistent with the timeframes used in the underlying scientific assessments. The future timeframe under consideration is consistent with the atmospheric lifetime and climate effects of the six well-mixed greenhouse gases, and also with our ability to make reasonable and plausible projections of future conditions. The Administrator acknowledges that some aspects of climate change science and the projected impacts are more certain than others. Our state of knowledge is strongest for recently observed, large-scale changes. Uncertainty tends to increase in characterizing changes at smaller (regional) scales relative to large (global) scales. Uncertainty also increases as the temporal scales move away from present, either backward, but more importantly forward in time. Nonetheless, the current state of knowledge of observed and past climate changes and their causes enables projections of plausible future changes under different scenarios of anthropogenic forcing for a range of spatial and temporal scales. In some cases, where the level of sensitivity to climate of a particular sector has been extensively studied, future impacts can be quantified whereas in other instances only a qualitative description of a directional change, if that, may be possible. The inherent uncertainty in the direction, magnitude, and/or rate of certain future climate change impacts opens up the possibility that some changes could be more or less severe than expected, and the possibility of unanticipated PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 outcomes. In some cases, low probability, high impact outcomes (i.e., known unknowns) are possibilities but cannot be explicitly assessed. 1. The Air Pollution Is Reasonably Anticipated To Endanger Public Health The Administrator finds that the wellmixed greenhouse gas air pollution is reasonably anticipated to endanger public health, for both current and future generations. The Administrator finds that the public health of current generations is endangered and that the threat to public health for both current and future generations will likely mount over time as greenhouse gases continue to accumulate in the atmosphere and result in ever greater rates of climate change. After review of public comments, the Administrator continues to believe that climate change can increase the risk of morbidity and mortality and that these public health impacts can and should be considered when determining endangerment to public health under CAA section 202(a). As described in Section IV.B.1 of these Findings, the Administrator is not limited to only considering whether there are any direct health effects such as respiratory or toxic effects associated with exposure to greenhouse gases. In making this public health finding, the Administrator considered direct temperature effects, air quality effects, the potential for changes in vector-borne diseases, and the potential for changes in the severity and frequency of extreme weather events. In addition, the Administrator considered whether and how susceptible populations may be particularly at risk. The current state of science on these effects from the major assessment reports is described in greater detail in the TSD, and our responses to public comments are provided in the Response to Comments Documents. a. Direct Temperature Effects It has been estimated that unusually hot days and heat waves are becoming more frequent, and that unusually cold days are becoming less frequent, as noted above. Heat is already the leading cause of weather-related deaths in the United States. In the future, severe heat waves are projected to intensify in magnitude and duration over the portions of the United States where these events already occur. Heat waves are associated with marked short-term increases in mortality. Hot temperatures have also been associated with increased morbidity. The projected warming is therefore projected to increase heat related mortality and E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations morbidity, especially among the elderly, young and frail. The populations most sensitive to hot temperatures are older adults, the chronically sick, the very young, city-dwellers, those taking medications that disrupt thermoregulation, the mentally ill, those lacking access to air conditioning, those working or playing outdoors, and socially isolated persons. As warming increases over time, these adverse effects would be expected to increase as the serious heat events become more serious. Increases in temperature are also expected to lead to some reduction in the risk of death related to extreme cold. Cold waves continue to pose health risks in northern latitudes in temperature regions where very low temperatures can be reached in a few hours and extend over long periods. Globally, the IPCC projects reduced human mortality from cold exposure through 2100. It is not clear whether reduced mortality in the United States from cold would be greater or less than increased heat-related mortality in the United States due to climate change. However, there is a risk that projections of cold-related deaths, and the potential for decreasing their numbers due to warmer winters, can be overestimated unless they take into account the effects of season and influenza, which is not strongly associated with monthly winter temperature. In addition, the latest USGCRP report refers to a study that analyzed daily mortality and weather data in 50 U.S. cities from 1989 to 2000 and found that, on average, cold snaps in the United States increased death rates by 1.6 percent, while heat waves triggered a 5.7 percent increase in death rates. The study concludes that increases in heat-related mortality due to global warming in the United States are unlikely to be compensated for by decreases in cold-related mortality. erowe on DSK5CLS3C1PROD with RULES4 b. Air Quality Effects Increases in regional ozone pollution relative to ozone levels without climate change are expected due to higher temperatures and weaker circulation in the United States relative to air quality levels without climate change. Climate change is expected to increase regional ozone pollution, with associated risks in respiratory illnesses and premature death. In addition to human health effects, tropospheric ozone has significant adverse effects on crop yields, pasture and forest growth, and species composition. The directional effect of climate change on ambient particulate matter levels remains less certain. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 Climate change can affect ozone by modifying emissions of precursors, atmospheric chemistry, and transport and removal. There is now consistent evidence from models and observations that 21st century climate change will worsen summertime surface ozone in polluted regions of North America compared to a future with no climate change. Modeling studies discussed in EPA’s Interim Assessment 28 show that simulated climate change causes increases in summertime ozone concentrations over substantial regions of the country, though this was not uniform, and some areas showed little change or decreases, though the decreases tend to be less pronounced than the increases. For those regions that showed climate-induced increases, the increase in maximum daily 8-hour average ozone concentration, a key metric for regulating U.S. air quality, was in the range of 2 to 8 ppb, averaged over the summer season. The increases were substantially greater than this during the peak pollution episodes that tend to occur over a number of days each summer. The overall effect of climate change was projected to increase ozone levels, compared to what would occur without this climate change, over broad areas of the country, especially on the highest ozone days and in the largest metropolitan areas with the worst ozone problems. Ozone decreases are projected to be less pronounced, and generally to be limited to some regions of the country with smaller population. c. Effects on Extreme Weather Events In addition to the direct effects of temperature on heat- and cold-related mortality, the Administrator considers the potential for increased deaths, injuries, infectious diseases, and stressrelated disorders and other adverse effects associated with social disruption and migration from more frequent extreme weather. The Administrator notes that the vulnerability to weather disasters depends on the attributes of the people at risk (including where they live, age, income, education, and disability) and on broader social and environmental factors (level of disaster preparedness, health sector responses, and environmental degradation). The IPCC finds the following with regard to extreme events and human health: 28 U.S. EPA (2009) Assessment of the Impacts of Global Change on Regional U.S. Air Quality: A Synthesis of Climate Change Impacts on GroundLevel Ozone. An Interim Report of the U.S. EPA Global Change Research Program. U.S. Environmental Protection Agency, Washington, DC, EPA/600/R–07/094. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 66525 Increases in the frequency of heavy precipitation events are associated with increased risk of deaths and injuries as well as infectious, respiratory, and skin diseases. Floods are low-probability, high-impact events that can overwhelm physical infrastructure, human resilience, and social organization. Flood health impacts include deaths, injuries, infectious diseases, intoxications, and mental health problems. Increases in tropical cyclone intensity are linked to increases in the risk of deaths, injuries, waterborne and food borne diseases, as well as post-traumatic stress disorders. Drowning by storm surge, heightened by rising sea levels and more intense storms (as projected by IPCC), is the major killer in coastal storms where there are large numbers of deaths. Flooding can cause health impacts including direct injuries as well as increased incidence of waterborne diseases due to pathogens such as Cryptosporidium and Giardia. d. Effects on Climate-Sensitive Diseases and Aeroallergens According to the assessment literature, there will likely be an increase in the spread of several food and water-borne pathogens among susceptible populations depending on the pathogens’ survival, persistence, habitat range and transmission under changing climate and environmental conditions. Food borne diseases show some relationship with temperature, and the range of some zoonotic disease carriers such as the Lyme disease carrying tick may increase with temperature. Climate change, including changes in carbon dioxide concentrations, could impact the production, distribution, dispersion and allergenicity of aeroallergens and the growth and distribution of weeds, grasses, and trees that produce them. These changes in aeroallergens and subsequent human exposures could affect the prevalence and severity of allergy symptoms. However, the scientific literature does not provide definitive data or conclusions on how climate change might impact aeroallergens and subsequently the prevalence of allergenic illnesses in the United States. It has generally been observed that the presence of elevated carbon dioxide concentrations and temperatures stimulate plants to increase photosynthesis, biomass, water use efficiency, and reproductive effort. The IPCC concluded that pollens are likely to increase with elevated temperature and carbon dioxide. E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66526 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations e. Summary of the Administrator’s Finding of Endangerment to Public Health The Administrator has considered how elevated concentrations of the wellmixed greenhouse gases and associated climate change affect public health by evaluating the risks associated with changes in air quality, increases in temperatures, changes in extreme weather events, increases in food and water borne pathogens, and changes in aeroallergens. The evidence concerning adverse air quality impacts provides strong and clear support for an endangerment finding. Increases in ambient ozone are expected to occur over broad areas of the country, and they are expected to increase serious adverse health effects in large population areas that are and may continue to be in nonattainment. The evaluation of the potential risks associated with increases in ozone in attainment areas also supports such a finding. The impact on mortality and morbidity associated with increases in average temperatures which increase the likelihood of heat waves also provides support for a public health endangerment finding. There are uncertainties over the net health impacts of a temperature increase due to decreases in cold-related mortality, but there is some recent evidence that suggests that the net impact on mortality is more likely to be adverse, in a context where heat is already the leading cause of weather-related deaths in the United States. The evidence concerning how humaninduced climate change may alter extreme weather events also clearly supports a finding of endangerment, given the serious adverse impacts that can result from such events and the increase in risk, even if small, of the occurrence and intensity of events such as hurricanes and floods. Additionally, public health is expected to be adversely affected by an increase in the severity of coastal storm events due to rising sea levels. There is some evidence that elevated carbon dioxide concentrations and climate changes can lead to changes in aeroallergens that could increase the potential for allergenic illnesses. The evidence on pathogen borne disease vectors provides directional support for an endangerment finding. The Administrator acknowledges the many uncertainties in these areas. Although these adverse effects, provide some support for an endangerment finding, the Administrator is not placing primary weight on these factors. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 Finally, the Administrator places weight on the fact that certain groups, including children, the elderly, and the poor, are most vulnerable to these climate-related health effects. f. Key Comments on the Finding of Endangerment to Public Health EPA received many comments on public health issues and the proposed finding of endangerment to public health. i. EPA’s Consideration of the Climate Impacts as Public Health Issues Is Reasonable Several commenters argue that EPA may only consider the health effects from direct exposure to pollutants in determining whether a pollutant endangers public health. The commenters state that EPA’s proposal acknowledges that there is no evidence that greenhouse gases directly cause health effects, citing 74 FR 18901. To support their claim that EPA can only consider health effects that result from direct exposure to a pollutant, commenters cite several sources, discussed below. Clean Air Act and Legislative History. Several commenters argue that the text of the CAA and the legislative history of the 1977 amendments demonstrate that Congress intended public health effects to relate to risks from direct exposure to a pollutant. They also argue that by considering health effects that result from welfare effects, EPA was essentially combining the two categories into one, contrary to the statute and Congressional intent. Commenters state that the CAA, including CAA section 202(a)(1), requires EPA to consider endangerment of public health separately from endangerment of public welfare. Commenters note that while the CAA does not provide a definition of public health, CAA section 302(h) addresses the meaning of ‘‘welfare,’’ which includes weather and climate. Thus, they argue, Congress has instructed that effects on weather and climate are to be considered as potentially endangering welfare—not human health. They continue that Congress surely knew that 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. Commenters also argue that the legislative history confirms that Congress intended for the definition of ‘‘public health’’ to only include the consequences of direct human exposure to ambient air pollutants. They note an PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 early version of section 109(b) would have required only a single NAAQS standard to protect ‘‘public health,’’ with the protection of ‘‘welfare’’ being a co-benefit of the single standard. Commenters note that the proponents of this early bill explained, ‘‘[i]n many cases, a level of protection of health would take care of the welfare situation’’ Sen. Hearing, Subcommittee on Air and Water Pollution, Comm. On Public Works (Mar. 17, 1970) (statement of Dr. Middleton, Comm’r, Nat’l Air Pollution Control Admin., HEW), 1970 Leg. Hist. 1194. Commenters state that the Senate bill that ultimately passed rejected this combined standard, requiring separate national ambient air quality standards and national ambient air quality goals. Commenters contend that Congress intended that the national ambient air quality goals be set ‘‘to protect the public health and welfare from any known or anticipated effects associated with’’ air pollution, including the list of ‘‘welfare’’ effects currently found in CAA section 302(h), such as effects on water, vegetation, animals, wildlife, weather and climate. Commenters note the Senate Committee Report stated that the national ambient air quality standards were created to protect public health, while the national ambient air quality goals were intended to address broader issues because ‘‘the Committee also recognizes that man’s natural and man-made environment must be preserved and protected. Therefore, the bill provides for the setting of national ambient air quality goals at levels necessary to protect public health and welfare from any known or anticipated adverse effects of air pollution—including effects on soils, water, vegetation, man-made materials, animals, wildlife, visibility, climate, and economic values.’’ Commenters argue this statement is clearly the source of the current definition of welfare effects in CAA section 302(h), which also includes ‘‘personal comfort and well being.’’ They argue the Senate bill contemplated the NAAQS would include only direct health effects, while the goals would encompass effects on both the public health and welfare. Commenters continue that considering both public health effects and welfare effects under a combined standard, as the Administrator attempts to do in the proposed endangerment finding, would resurrect the combined approach to NAAQS that the Senate emphatically rejected. The commenters also cite language from the House Report in support of their view that Congress only intended that EPA consider direct health effects E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations when assessing endangerment to public health: ‘‘By the words ‘cause or contribute to air pollution,’ the committee intends to require the Administrator to consider all sources of the contaminant which contributes to air pollution and to consider all sources of exposure to the contaminant—food, water, air, etc.—in determining health risks’’ 7 H.R. Rep. No. 95–294, at 49–50 (1977). Commenters also cite language in the Senate Report: ‘‘Knowledge of the relationship between the exposure to many air pollution agents and acute and chronic health effects is sufficient to develop air quality criteria related to such effects’’ S. Rep. No. 91–1196, at 7 (1970). The specific issue here is whether an effect on human health that results from a change in climate should be considered when EPA determines whether the air pollution of well-mixed greenhouse gases is reasonably anticipated to endanger public health. In this case, the air pollution has an effect on climate. For example the air pollution raises surface, air, and water temperatures. Among the many effects that flow from this is the expectation that there will be an increase in the risk of mortality and morbidity associated with increased intensity of heat waves. In addition, there is an expectation that there will be an increase in levels of ambient ozone, leading to increased risk of morbidity and mortality from exposure to ozone. All of these are effects on human health, and all of them are associated with the effect on climate from elevated atmospheric concentrations of greenhouse gases. None of these human health effects are associated with direct exposure to greenhouse gases. In the past, EPA has not had to resolve the issue presented here, as it has been clear whether the effects relate to public health or relate to public welfare, with no confusion over what category was at issue. In those cases EPA has routinely looked at what effect the air pollution has on people. If the effect on people is to their health, we have considered it an issue of public health. If the effect on people is to their interest in matters other than health, we have considered it public welfare. For example, there are serious health risks associated with inhalation of ozone, and they have logically been considered as public health issues. Ambient levels of ozone have also raised the question of indirect health benefits through screening of harmful UVB rays. EPA has also considered this indirect health effect of ozone to be a VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 public health issue.29 Ozone pollution also affects people by impacting their interests in various vegetation through foliar damage to trees, reduced crop yield, adverse impacts on horticultural plants, and the like. EPA has consistently considered these issues when evaluating the public welfare based NAAQS standards under CAA section 109. In all of these situations the use of the term ‘‘public’’ has focused EPA on how people are affected by the air pollution. If the effect on people is to their health then we have considered it a public health issue. If the effect on people is to their interest in matters other than health, then we have treated it as a public welfare issue. The situation presented here is somewhat unique. The focus again is on the effect the air pollution has on people. Here the effect on people is to their health. However this effect flows from the change in climate and effects on climate are included in the definition of effects on welfare. That raises the issue of how to categorize the health effects—should we consider them when evaluating endangerment to public health? When we evaluate endangerment to public welfare? Or both? The text of the CAA does not resolve this question. While Congress defined ‘‘effects on welfare,’’ it did not define either ‘‘public health’’ or ‘‘public welfare’’. In addition, the definition of ‘‘effects on welfare’’ does not clearly address how to categorize health effects that flow from effects on soils, water, crops, vegetation, weather, climate, or any of the other factors listed in CAA section 302(h). It is clear that effects on climate are an effect on welfare, but the definition does not address whether health impacts that are caused by these changes in climate are also effects on welfare. The health effects at issue are not themselves effects on soils, water, crops, vegetation, weather, or climate. They are instead effects on health. They 29 As discussed later, in the past EPA took the position that this kind of potential indirect beneficial impact on public health should not be considered when setting the primary health based NAAQS for ozone. This was not based on the view that it was not a potential public health impact, or that it was a public welfare impact instead of a public health impact. Instead EPA was interpreting the NAAQS standard setting provisions of section 109, and argued that they were intended to address only certain public health impacts, those that were adverse, and were not intended to address indirect, beneficial public health impacts. This interpretation of section 109 was rejected in ATA v. EPA, 175 F.3d 1027 (1999) reh’g granted in part and denied in part, 195 F.3d 4 (DC Cir. 1999). The court made it clear that the potential indirect beneficial impact of ambient ozone on public health from screening UVB rays needed to be considered when setting the NAAQS to protect public health. PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 66527 derive from the effects on climate, but they are not themselves effects on climate or on anything else listed in CAA section 302(h). So the definition of effects on welfare does not address whether an effect on health, which is not itself listed in CAA section 302(h), is also an effect on welfare if it results from an effect on welfare. The text of the CAA also does not address the issue of direct and indirect health effects. Contrary to commenters’ assertions, the legislative history does not address or resolve this issue. In this context, EPA is interpreting the endangerment provision in CAA section 202(a) as meaning that the effects on peoples’ health from changes to climate can and should be included in EPA’s evaluation of whether the air pollution at issue endangers public health. EPA is not deciding whether these health effects also could or should be considered in evaluating endangerment to public welfare. The stating of the issue makes the answer seem straightforward. If air pollution causes sickness or death, then these health effects should be considered when evaluating whether the air pollution endangers public health. The term public health is undefined, and by itself this is an eminently reasonable way to interpret it. This focuses on the actual effect on people, as compared to ignoring that and focusing on the pathway from the air pollution to the effect. The question then becomes whether there is a valid basis in the CAA to take the different approach suggested by commenters, an approach contrary to the common sense meaning of public health. Notably, the term ‘‘public welfare’’ is undefined. While it clearly means something other than public health, there is no obvious indication whether Congress intended there to be a clear boundary between the two terms or whether there might be some overlap where some impacts could be considered both a public health and a public welfare impact. Neither the text nor the legislative history resolves this issue. Under either approach, EPA believes the proper interpretation is that these effects on health should be considered when evaluating endangerment to public health. If we assume Congress intended that effects on public welfare could not include effects on public health and vice versa, then the effects at issue here should most reasonably be considered in the public health category. Indisputably they are health effects, and the plain meaning of the term public health would call for their inclusion in that term. The term public welfare is E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66528 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations undefined. If Congress intended that public welfare not include matters included in the public health category, then a reasonable interpretation of this undefined term would include those effects on welfare that impact people in ways other than impacting their health. The definition of ‘‘effects on welfare’’ does not clearly address how to categorize health effects that flow from effects on water, soil, land, climate, or weather. As noted above, the definition does not address whether health impacts that are caused by these changes in climate are also ‘‘effects on welfare.’’ Certainly effects on health are not included in the list in CAA section 302(h). The lack of clarity in the definition of effects on welfare, combined with the lack of definition of public welfare, do not warrant interpreting the term public health differently from its straightforward and common sense meaning. The inclusion of the phrase ‘‘effects on * * * personal comfort and wellbeing’’ as an effect on welfare supports this view. The term would logically mean something other than the different term public health. The term ‘‘wellbeing’’ is not defined, and generally has a broader and different connotation of positive physical, emotional, and mental status. The most straightforward meaning of this term, in a context where Congress used the different term public health in a wide variety of other provisions, would be to include effects on people that do not rise to the level of health effects, but otherwise impact their physical, emotional, and mental status. This gives full meaning to both terms. The term well-being is a general term, and in isolation arguably could include health effects. However there is no textual basis to say it would include some health effects but not others, as argued by commenters. If sickness impacts your well-being, then it impacts your well-being whether it results directly or indirectly from the pollution in the air. Nothing in CAA section 302(h) limits the term well-being to indirect impacts on people, or to health effects that occur because of other welfare effects, such as climate change. It is listed as its own effect on welfare. Instead of interpreting well-being as including all health effects, or some health effects, the much more logical way to interpret this provision in the context of all of the other provisions of the CAA is to interpret it as meaning effects on people other than health effects. Thus, if Congress intended to draw a strict line between the two categories of public health and public welfare, for VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 purposes of determining endangerment under CAA section 202(a), then EPA believes that its interpretation is a reasonable and straightforward way to categorize the health effects at issue here. This gives weight to the common sense meaning of the term public health, where the terms public health and public welfare are undefined and the definition of effects on welfare is at best ambiguous on this issue. In the alternative, if Congress did not intend any such bright line between these two categories and there could be an overlap, then it is also reasonable for EPA to include these health effects in its consideration of whether the air pollution endangers public health. Neither approach condenses or conflates the two different terms. Under either approach EPA’s interpretation, as demonstrated in this rulemaking, would still consider numerous and varied effects from climate change as indisputable impacts on public welfare and not impacts on public health. In addition, this interpretation will not change the fact that in almost all cases impacts on public health would not also be considered impacts on public welfare. Prior EPA actions. Several commenters argue that EPA’s decision to include health impacts that occur because of climate change is inconsistent with its past approach, which has been to treat indirect health effects as welfare effects. Commenters contend that in the latest Criteria Document for ozone EPA listed tropospheric ozone’s effects on UVBinduced human diseases, as well as its effects on climate change, as welfare effects, even though the agency acknowledged significant health effects such as sunburn and skin cancer. Commenters also argue that EPA listed ‘‘risks to human health’’ from toxins released by algal blooms due to excess nitrogen as ‘‘ecological and other welfare effects’’ in the recent Criteria Document for oxides of nitrogen and sulfur. Finally, commenters argue that EPA’s proposed action was contrary to the Agency decision to list new municipal solid waste landfills as a source category under CAA section 111. Commenters state that EPA listed climate change as a welfare effect in that action, (citing 56 FR 24469). The Agency’s recent approach regarding UVB-induced health effects is consistent with the endangerment findings, and demonstrates that the Agency considers indirect effects on human health as public health issues rather than public welfare issues. While the ozone Criteria Document may have placed the discussion of UV–B related PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 health effects among chapters on welfare effects, in evaluating the evidence presented in the Criteria Document for purposes of preparing the policy assessment document, EPA staff clearly viewed UVB-induced effects as human health effects that were relevant in determining the public health based primary NAAQS for ozone, rather than welfare effects, regardless of which chapter in the Criteria Document described those effects. The evaluation of the UVB-related evidence is discussed with other human health effects evidence. The policy assessment document noted that Chapter 10 of the Criteria Document, ‘‘provides a thorough analysis of the current understanding of the relationship between reducing tropospheric [ozone] concentrations and the potential impact these reductions might have on UV–B surface fluxes and indirectly contributing to increased UV–B related health effects.’’ See, Review of the National Ambient Air Quality Standards for Ozone: Policy Assessment of Scientific and Technical Information, p 3–36 (January 2007) (emphasis added). EPA repeated this view in the 2007 proposed ozone NAAQS rule. In presenting its evaluation of the human health evidence for purposes of setting the public health based primary NAAQS, EPA stated: ‘‘This section also summarizes the uncertainty about the potential indirect effects on public health associated with changes due to increases in UV–B radiation exposure, such as UV–B radiation-related skin cancers, that may be associated with reductions in ambient levels of groundlevel [ozone], as discussed in chapter 10 of the Criteria Document and chapter 3 of the Staff Paper.’’ 72 FR 37818, 37827. See also, 72 FR 37837 (‘‘* * * the Criteria Document also assesses the potential indirect effects related to the presence of [ozone] in the ambient air by considering the role of ground-level [ozone] in mediating human health effects that may be directly attributable to exposure to solar ultraviolet radiation (UV–B).’’) Thus, EPA’s approach to UV–B related health effects clearly shows the Agency has treated indirect health effects not as welfare effects, as commenters suggest, but as human health effects that need to be evaluated when setting the public health based primary NAAQS. In this ozone NAAQS rulemaking, EPA did not draw a line between direct and indirect health effects for purposes of evaluating UV–B related health effects and the public health based primary NAAQS. E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations Similarly, the NOX/SOX criteria document does not establish a precedent that indirect human health effects are welfare effects. Toxic algal blooms themselves are a welfare effect, so it is not surprising a discussion of algal blooms appears in sections dealing with welfare effects. The more relevant question is how EPA evaluated information regarding human health risks resulting from algal blooms. In the case of the Criteria Document, the role of nitrogen in causing algal blooms was unclear. As a result, the Agency did not have occasion to evaluate any resulting human health effects and the Criteria Document does not support the view that EPA treats indirect health effects as anything other than a public health issue. Finally, EPA disagrees that its action here is at odds with the listing of municipal solid waste landfills under CAA section 111. In the landfills New Source Performance Standard (NSPS) EPA did not consider health effects resulting from climate change much less draw any conclusions about health effects from climate change being health or welfare effects. If anything, the landfills NSPS is consistent with EPA’s approach. In the proposed rule, EPA stated: ‘‘The EPA has documented many cases of acute injury and death caused by explosions and fires related to municipal landfill gas emissions. In addition to these health effects, the associated property damage is a welfare effect’’ (56 FR 24474). EPA considered injury and death from fires resulting from landfill gasses to be health effects. Yet the injury did not result from direct exposure to the pollutant (landfill gas). Instead, the injury resulted from the combustion of the pollutant—the injury is essentially an indirect effect of the pollutant. Yet, as with this action, EPA considered the injury as a human health effect. Case law. Several commenters argue that EPA’s proposed endangerment finding was inconsistent with NRDC v. EPA, 902 F.2d 962 (DC Cir 1990). Commenters argue that in rejecting the argument that EPA must consider the health effects of increased unemployment that could result from a more stringent primary NAAQS standard, the DC Circuit explained that, ‘‘[i]t is only the health effects relating to pollutants in the air that EPA may consider.’’ Id. at 973. Several commenters further argue that 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. Citing, EPA Pet’n for Rehearing, Am. Trucking Ass’n v. EPA, No. 97–1440 (DC Cir. June 28, 1999) VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 (‘‘ATA I’’) (arguing that the primary NAAQS should be set through consideration of only ‘‘direct adverse effects on public health, and not indirect, allegedly beneficial effects.’’) The NRDC case is not contrary to EPA’s endangerment finding. In NRDC, petitioner American Iron and Steel Institute argued that EPA had to consider the costs of health consequences that might arise from increased unemployment. The court ruled that, ‘‘[c]onsideration of costs associated with alleged health risks from unemployment would be flatly inconsistent with the statute, legislative history and case law on this point.’’ 902 F.2d at 973. The cases cited by the court in support of its decision all hold that EPA may not consider economic or technological feasibility in establishing a NAAQS. The NRDC decision does not establish a precedent that the CAA prohibits EPA from considering indirect health effects as a public health issue rather than a public welfare issue. EPA also believes reliance on the Agency’s petition for rehearing in noted above is misplaced. In that case, EPA did not argue that indirect beneficial health effects were not public health issues. Instead EPA argued that under the CAA, it did not have to consider such indirect beneficial health effects of an air pollutant when setting the health based primary NAAQS. EPA was interpreting the NAAQS standard setting provisions of CAA section 109, and argued that they were intended to address only certain public health impacts, those that were adverse, and were not intended to address indirect, beneficial public health impacts. The issue in the case was not whether indirect health effects are relevant for purposes of making an endangerment decision concerning public health, but rather whether EPA must consider such beneficial health effects in establishing a primary NAAQS under CAA section 109. EPA’s interpretation of CAA section 109 was rejected in ATA v. EPA, 175 F.3d at 1027 (1999) reh’g granted in part and denied in part, 195 F.3d at 4 (DC Cir. 1999). The court made it clear that the potential indirect beneficial impact of ambient ozone on public health from screening UVB rays needed to be considered when setting the NAAQS to protect public health. As discussed above, EPA has done just that as noted above in the UV–B context. Moreover, as discussed in Section II of these Findings, EPA is doing that here as well (e.g., considering any benefits from reduced cold weather related deaths). PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 66529 ii. EPA’s Treatment and Balancing of Heat- vs. Cold-Related Public Health Risks Was Reasonable A number of public commenters maintain that the risk of heat waves in the future will be modulated by adaptive measures. The Administrator is aware of the potential benefits of adaptation in reducing heat-related morbidity and mortality and recognizes most heat-related deaths are preventable. Nonetheless, the Administrator notes the assessment literature 30 indicates heat is the leading weather-related killer in the United States even though countermeasures have been employed in many vulnerable areas. Given projections for heat waves of greater frequency, magnitude, and duration coupled with a growing population of older adults (among the most vulnerable groups to this hazard), the risk of adverse health outcomes from heat waves is expected to increase. Intervention and response measures could certainly reduce the risk, but as we have noted, the need to adapt supports an increase in risk or endangerment. For a general discussion about EPA’s treatment of adaptation see Section III.C of these Findings. Several commenters also suggest coldrelated mortality will decrease more than heat-related mortality will increase, which indicates a net reduction in temperature-related mortality. Some commenters point to research suggesting migration to warmer climates has contributed to the increased longevity of some Americans, implying climate warming will have benefits for health. The Administrator is very clear that the exact balance of how heat- versus cold-related mortality will change in the future is uncertain; however, the assessment literature points to evidence suggesting that the increased risk from heat would exceed the decreased risk from cold in a warming climate. The Administrator does not dispute research indicating the benefits of migration to a warmer climate and nor that average climate warming may indeed provide health benefits in some areas. These points are reflected in the TSD’s statement projecting less cold-related health effects. The Administrator considers these potential warming benefits independent of the potential negative effects of extreme heat events which are projected to increase under future climate change scenarios affecting vulnerable groups and communities. 30 Karl E:\FR\FM\15DER4.SGM et al. (2009). 15DER4 66530 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 iii. EPA Was Reasonable To Find That the Air Quality Impacts of Climate Change Contribute to the Endangerment of Public Health Several commenters suggest that air quality effects of climate change will be addressed through the CAA’s NAAQS process, as implemented by the State Implementation Plans (SIP) and national regulatory programs. According to these commenters, these programs will ensure no adverse impact on public health due to climate change. Though climate change may cause certain air pollutant ambient concentrations to increase, States will continue to be compelled to meet the standards. So, while additional measures may be necessary, and result in increased costs, these commenters assert that, ultimately, public health will be protected by the continued existence of the NAAQS and therefore no endangerment with respect to this particular climate change-related impact will occur. One commenter states that EPA inappropriately assigns air quality risk to climate change that will be addressed through other programs. The CAA provides a mechanism to meet the standards and additional control measures consistent with the CAA will be adopted in the future, keeping pollution below unhealthy levels. The commenters state that the fact that NAAQS are in place that require EPA to fulfill its legal obligation to prevent this particular form of endangerment to public health. EPA does have in place NAAQS for ozone, which are premised on the harmfulness of ozone to public health and welfare. These standards and their accompanying regulatory regime have helped to reduce the dangers from ozone in the United States. However, substantial challenges remain with respect to achieving the air quality protection promised by the NAAQS for ozone. It is the Administrator’s view that these challenges will be exacerbated by climate change. In addition, the control measures to achieve attainment with a NAAQS are a mitigation measure aimed at reducing emissions of ozone precursors. As discussed in Section III.C of these Findings, EPA is not considering the impacts of mitigation with respect to future reductions in emissions of greenhouse gases. For the same reasons, EPA is reasonably not considering mitigation in the form of the control measures that will need to be adopted in the future to reduce emissions of ozone precursors and thereby address the increased ambient ozone levels that can occur because of climate change. VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 It is important to note that controls to meet the NAAQS are typically put in place only after air quality concentrations exceeding the standard are detected. Furthermore, implementation of controls to reduce ambient concentrations of pollutants occurs over an extended time period, ranging from three years to more than twenty years depending on the pollutant and the seriousness of the nonattainment problem. Thus, while the CAA provides mechanisms for addressing adverse health effects and the underlying air quality exacerbation over time, it will not prevent the adverse impacts in the interim. Given the serious nature of the health effects at issue—including respiratory and cardiovascular disease leading to hospital admissions, emergency department visits, and premature mortality—this increase in adverse impacts during the time before additional controls can be implemented is a serious public health concern. Historically, a large segment of the U.S. population has lived in areas exceeding the NAAQS, despite the CAA and its implementation efforts. Half of all Americans, 158 million people, live in counties where air pollution exceeds national health standards.31 Where attainment of the NAAQS is especially difficult, leading to delays in meeting attainment deadlines, the health effects of increased ozone due to climate change may be substantial. It is also important to note that it may not be possible for States and Tribes to plan accurately for the impacts of climate change in developing control strategies for nonattainment areas. As noted in the TSD and EPA’s 2009 Interim Assessment report (IA), climate change is projected to lead to an increase in the variability of weather, and this may increase peak pollution events including increases in ozone exceedances. While the modeling studies in the IA all show significant future changes in meteorological quantities, there is also significant variability across the simulations in the spatial patterns of these future changes, making it difficult to select a set of future meteorological data for planning purposes. At this time, models used to develop plans to attain the NAAQS do not take potential changes in future meteorology into consideration. Inability to predict the frequency and magnitude of such events could lead to an underestimation of the controls needed to bring areas into attainment, 31 U.S. EPA (2008) National Air Quality: Status and Trends Through 2007. EPA–454/R–08–006, November 2008. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 and a prolonged period during which adverse health impacts continue to occur. Even in areas that meet the NAAQS currently, air quality may deteriorate sufficiently to cause adverse health effects for some individuals. Some atrisk individuals, for example those with preexisting health conditions or other characteristics which increase their risk for adverse effects upon exposure to PM or ozone, may experience health effects at levels below the standard. Current evidence suggests that there is no threshold for PM or ozone concentrations below which no effects can be observed. Therefore, increases in ozone or PM in locations that currently meet the standards would likely result in additional adverse health effects for some individuals, even though the pollution increase might not be sufficient to cause the area to be designated nonattainment. While the NAAQS is set to protect public health with an adequate margin of safety, it is recognized that in attainment areas there may be individuals who remain at greater risk from an increase in ozone levels. The clear risk to the public from ozone increases in nonattainment areas, in combination with the risk to some individuals in attainment areas, supports the finding that overall the public health is endangered by increases in ozone resulting from climate change. Finally, it is also important to note that not all air pollution events are subject to CAA controls under the NAAQS implementation provisions. ‘‘Exceptional events’’ are events for which the normal planning and regulatory process established by the CAA is not appropriate (72 FR 13561). Emissions from some events, including some wildfires, are not reasonably controllable or preventable. Such emissions, however, can adversely impact public health and welfare and are expected to increase due to climate change. As described in the TSD, PM emissions from wildfires can contribute to acute and chronic illnesses of the respiratory system, particularly in children, including pneumonia, upper respiratory diseases, asthma and chronic obstructive pulmonary disease. The IPCC (Field et al., 2007) reported with very high confidence that in North America, disturbances like wildfires are increasing and are likely to intensify in a warmer future with drier soils and longer growing seasons. 2. The Air Pollution Is Reasonably Anticipated to Endanger Public Welfare The Administrator also finds that the well-mixed greenhouse gas air pollution may reasonably be anticipated to E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 endanger public welfare, both for current and future generations. As with public health, the Administrator considered the multiple pathways in which the greenhouse gas air pollution and resultant climate change affect climate-sensitive sectors, and the impact this may have on public welfare. These sectors include food production and agriculture; forestry; water resources; sea level rise and coastal areas; energy, infrastructure, and settlements; and ecosystems and wildlife. The Administrator also considered impacts on the U.S. population from climate change effects occurring outside of the United States, such as national security concerns for the United States that may arise as a result of climate change impacts in other regions of the world. The Administrator examined each climatesensitive sector individually, informed by the summary of the scientific assessments contained in the TSD, and the full record before EPA, and weighed the extent to which the risks and impacts within each sector support or do not support a positive endangerment finding in her judgment. The Administer then viewed the full weight of evidence looking across all sectors to reach her decision regarding endangerment to public welfare. a. Food Production and Agriculture Food production and agriculture within the United States is a sector that will be affected by the combined effects of elevated carbon dioxide concentrations and associated climate change. The Administrator considered how these effects, both adverse and beneficial, are affecting the agricultural sector now and in the future, and over different regions of the United States, taking into account that different regions of the country specialize in different agricultural products with varying degrees of sensitivity and vulnerability to elevated carbon dioxide levels and associated climate change. Elevated carbon dioxide concentrations can have a stimulatory effect on grain and oilseed crop yield, as may modest temperature increases and a longer growing season that results. A report under the USGCRP concluded that, with increased carbon dioxide and temperature, the life cycle of grain and oilseed crops will likely progress more rapidly. However, such beneficial influences need to be considered in light of various other effects. For example, the literature indicates that elevated carbon dioxide concentrations may also enhance pest and weed growth. Pests and weeds can reduce crop yields, cause economic losses to VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 farmers, and require management control options. How climate change (elevated carbon dioxide, increased temperatures, altered precipitation patterns, and changes in the frequency and intensity of extreme events) may affect the prevalence of pests and weeds is an issue of concern for food production and the agricultural sector. Research on the combined effects of elevated carbon dioxide and climate change on pests, weeds, and disease is still limited. In addition, higher temperature increases, changing precipitation patterns and variability, and any increases in ground-level ozone induced by higher temperatures, can work to counteract any direct stimulatory carbon dioxide effect, as well as lead to their own adverse impacts. There may be large regional variability in the response of food production and agriculture to climate change. For grain and oilseed crop yields, there is support for the view that in the near term climate change may have a beneficial effect, largely through increased temperature and increased carbon dioxide levels. However there are also factors noted above, some of which are less well studied and understood, which would tend to offset any near term benefit, leaving significant uncertainty about the actual magnitude of any overall benefit. The USGCRP report also concluded that as temperature rises, these crops will increasingly begin to experience failure, especially if climate variability increases and precipitation lessens or becomes more variable. A key uncertainty is how humaninduced climate change may affect the intensity and frequency of extreme weather events such as droughts and heavy storms. These events have the potential to have serious negative impact on U.S. food production and agriculture, but are not always taken into account in studies that examine how average conditions may change as a result of carbon dioxide and temperature increases. Changing precipitation patterns, in addition to increasing temperatures and longer growing seasons, can change the demand for irrigation requirements, potentially increasing irrigation demand. Another key uncertainty concerns the many horticultural crops (e.g., tomatoes, onions, fruits), which make up roughly 40 percent of total crop value in the United States. There is relatively little information on their response to carbon dioxide, and few crop simulation models, but according to the literature, they are very likely to be more sensitive PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 66531 to the various effects of climate change than grain and oilseed crops. With respect to livestock, higher temperatures will very likely reduce livestock production during the summer season in some areas, but these losses will very likely be partially offset by warmer temperatures during the winter season. The impact on livestock productivity due to increased variability in weather patterns will likely be far greater than effects associated with the average change in climatic conditions. Cold-water fisheries will likely be negatively affected; warm-water fisheries will generally benefit; and the results for cool-water fisheries will be mixed, with gains in the northern and losses in the southern portions of ranges. Finally, with respect to irrigation requirements, the adverse impacts of climate change on irrigation water requirements may be significant. There is support for the view that there may be a benefit in the near term in the crop yield for certain crops. This potential benefit is subject to significant uncertainty, however, given the offsetting impact on the yield of these crops from a variety of other climate change impacts that are less well understood and more variable. Any potential net benefit is expected to change to a disbenefit in the longer term. In addition, there is clear risk that the sensitivity of a major segment of the total crop market, the horticultural sector, may lead to adverse affects from climate change. With respect to livestock production and irrigation requirements, climate change is likely to have adverse effects in both the near and long terms. The impact on fisheries varies, and would appear to be best viewed as neutral overall. There is a potential for a net benefit in the near term for certain crops, but there is significant uncertainty about whether this benefit will be achieved given the various potential adverse impacts of climate change on crop yield, such as the increasing risk of extreme weather events. Other aspects of this sector are expected to be adversely affected by climate change, including livestock management and irrigation requirements, and there is a risk of adverse effect on a large segment of the total crop market. For the near term, the concern over the potential for adverse effects in certain parts of the agriculture sector appears generally comparable to the potential for benefits for certain crops. However, considering the trend over near- and long-term future conditions, the Administrator finds that the body of evidence points towards increasing risk E:\FR\FM\15DER4.SGM 15DER4 66532 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 of net adverse impacts on U.S. food production and agriculture, with the potential for significant disruptions and crop failure in the future. b. Forestry The factors that the Administrator considered for the U.S. forest sector are similar to those for food production and agriculture. There is the potential for beneficial effects due to elevated concentrations of carbon dioxide and increased temperature, as well as the potential for adverse effects from increasing temperatures, changing precipitation patterns, increased insects and disease, and the potential for more frequent and severe extreme weather events. The potential beneficial effects are better understood and studied, and are limited to certain areas of the country and types of forests. The adverse effects are less certain, more variable, and also include some of the most serious adverse effects such as increased wildfire, drought, and major losses from insects and disease. As with food production and agriculture, the judgment to be made is largely a qualitative one, balancing impacts that vary in certainty and magnitude, with the end result being a judgment as to the overall direction and general level of concern. According to the underlying science assessment reports, climate change has very likely increased the size and number of wildfires, insect outbreaks, and tree mortality in the Interior West, the Southwest, and Alaska, and will continue to do so. Rising atmospheric carbon dioxide levels will very likely increase photosynthesis for forests, but the increased photosynthesis will likely only increase wood production in young forests on fertile soils. Nitrogen deposition and warmer temperatures have very likely increased forest growth where water is not limiting and will continue to do so in the near future. An increased frequency of disturbance (such as drought, storms, insect-outbreaks, and wildfire) is at least as important to forest ecosystem function as incremental changes in temperature, precipitation, atmospheric carbon dioxide, nitrogen deposition, and ozone pollution. Disturbances partially or completely change forest ecosystem structure and species composition, cause short-term productivity and carbon storage loss, allow better opportunities for invasive alien species to become established, and command more public and management attention and resources. The combined effects of expected increased temperature, carbon dioxide, nitrogen deposition, ozone, and forest VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 disturbance on soil processes and soil carbon storage remain unclear. Precipitation and weather extremes are key to many forestry impacts, accounting for part of the regional variability in forest response. If existing trends in precipitation continue, it is expected that forest productivity will likely decrease in the Interior West, the Southwest, eastern portions of the Southeast, and Alaska, and that forest productivity will likely increase in the northeastern United States, the Lake States, and in western portions of the Southeast. An increase in drought events will very likely reduce forest productivity wherever such events occur. Changes in disturbance patterns are expected to have a substantial impact on overall gains or losses. More prevalent wildfire disturbances have recently been observed in the United States. Wildfires and droughts, among other extreme events (e.g., hurricanes) that can cause forest damage, pose the largest threats over time to forest ecosystems. For the near term, the Administrator believes the beneficial impact on forest growth and productivity in certain parts of the country from climate change to be more than offset by the clear risk from the more significant and serious adverse effects from the observed increases in wildfires, combined with the adverse impacts on growth and productivity in other areas of the country and the serious risks from the spread of destructive pests and disease. Increased wildfires can also increase particulate matter and thus create public health concerns as well. For the longer term, the Administrator views the risk from adverse effects to increase over time, such that overall climate change presents serious adverse risks for forest productivity. The Administrator therefore finds there is compelling reason to find that the greenhouse gas air pollution endangers U.S. forestry in both the near and long term, with the support for a positive endangerment finding only increasing as one considers expected future conditions in which temperatures continue to rise. c. Water Resources The sensitivity of water resources to climate change is very important given the increasing demand for adequate water supplies and services for agricultural, municipal, and energy and industrial uses, and the current strains on this resource in many parts of the country. According to the assessment literature, climate change has already altered, and will likely continue to alter, the water cycle, affecting where, when, PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 and how much water is available for all uses. With higher temperatures, the water-holding capacity of the atmosphere and evaporation into the atmosphere increase, and this favors increased climate variability, with more intense precipitation and more droughts. Climate change is causing and will increasingly cause shrinking snowpack induced by increasing temperature. In the western United States, there is already well-documented evidence of shrinking snowpack due to warming. Earlier meltings, with increased runoff in the winter and early spring, increase flood concerns and also result in substantially decreased summer flows. This pattern of reduced snowpack and changes to the flow regime pose very serious risks to major population regions, such as California, that rely on snowmelt-dominated watersheds for their water supply. While increased precipitation is expected to increase water flow levels in some eastern areas, this may be tempered by increased variability in the precipitation and the accompanying increased risk of floods and other concerns such as water pollution. Warmer temperatures and decreasing precipitation in other parts of the country, such as the Southwest, can sustain and amplify drought impacts. Although drought has been more frequent and intense in the western part of the United States, the East is also vulnerable to droughts and attendant reductions in water supply, changes in water quality and ecosystem function, and challenges in allocation. The stress on water supplies on islands is expected to increase. The impact of climate change on groundwater as a water supply is regionally variable; efforts to offset declining surface water availability due to increasing precipitation variability may be hampered by the fact that groundwater recharge will decrease considerably in some already waterstressed regions. In coastal areas, the increased salinization from intrusion of salt water is projected to have negative effects on the supply of fresh water. Climate change is expected to have adverse effects on water quality. The IPCC concluded with high confidence that higher water temperatures, increased precipitation intensity, and longer periods of low flows exacerbate many forms of water pollution and can impact ecosystems, human health, and water system reliability and operating costs. These changes will also exacerbate many forms of water pollution, potentially making attainment of water quality goals more E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations difficult. Water pollutants of concern that are particularly relevant to climate change effects include sediment, nutrients, organic matter, pathogens, pesticides, salt, and thermal pollution. As waters become warmer, the aquatic life they now support will be replaced by other species better adapted to warmer water. In the long term, warmer water, changing flows, and decreased water quality may result in deterioration of aquatic ecosystems. Climate change will likely further constrain already over-allocated water resources in some regions of the United States, increasing competition among agricultural, municipal, industrial, and ecological uses. Although water management practices in the United States are generally advanced, particularly in the West, the reliance on past conditions as the basis for current and future planning may no longer be appropriate, as climate change increasingly creates conditions well outside of historical observations. Increased incidence of extreme weather and floods may also overwhelm or damage water treatment and management systems, resulting in water quality impairments. In the Great Lakes and major river systems, lower water levels are likely to exacerbate challenges relating to water quality, navigation, recreation, hydropower generation, water transfers, and bi-national relationships. The Administrator finds that the total scientific literature provides compelling support for finding that greenhouse gas air pollution endangers the water resources important for public welfare in the United States, both for current and future generations. The adequacy of water supplies across large areas of the country is at serious risk from climate change. Even areas of the country where an increase in water flow is projected could face water resource problems from the variability of the supply and water quality problems associated with precipitation variability, and could face the serious adverse effects from risks from floods and drought. Climate change is expected to adversely affect water quality. There is an increased risk of serious adverse effects from extreme events of flooding and drought. The severity of risks and impacts may only increase over time with accumulating greenhouse gas concentrations and associated temperature increases and precipitation changes. d. Sea Level Rise and Coastal Areas A large percentage of the U.S. population lives in coastal areas, which are particularly vulnerable to the risks posed by climate change. The most VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 vulnerable areas are the Atlantic and Gulf Coasts, the Pacific Islands, and parts of Alaska. According to the assessment literature, sea level is rising along much of the U.S. coast, and the rate of change will very likely increase in the future, exacerbating the impacts of progressive inundation, storm-surge flooding, and shoreline erosion. Cities such as New Orleans, Miami, and New York are particularly at risk, and could have difficulty coping with the sea level rise projected by the end of the century under a higher emissions scenario. Population growth and the rising value of infrastructure increases the vulnerability to climate variability and future climate change in coastal areas. Adverse impacts on islands present concerns for Hawaii and the U.S. territories. Reductions in Arctic sea ice increases extreme coastal erosion in Alaska, due to the increased exposure of the coastline to strong wave action. In the Great Lakes, where sea level rise is not a concern, both extremely high and low water levels resulting from changes to the hydrological cycle have been damaging and disruptive to shoreline communities. Coastal wetland loss is being observed in the United States where these ecosystems are squeezed between natural and artificial landward boundaries and rising sea levels. Up to 21 percent of the remaining coastal wetlands in the U.S. mid-Atlantic region are potentially at risk of inundation between 2000 and 2100. Coastal habitats will likely be increasingly stressed by climate change impacts interacting with development and pollution. Although increases in mean sea level over the 21st century and beyond will inundate unprotected, low-lying areas, the most devastating impacts are likely to be associated with storm surge. Superimposed on expected rates of sea level rise, projected storm intensity, wave height, and storm surge suggest more severe coastal flooding and erosion hazards. Higher sea level provides an elevated base for storm surges to build upon and diminishes the rate at which low-lying areas drain, thereby increasing the risk of flooding from rainstorms. In New York City and Long Island, flooding from a combination of sea level rise and storm surge could be several meters deep. Projections suggest that the return period of a 100-year flood event in this area might be reduced to 19–68 years, on average, by the 2050s, and to 4–60 years by the 2080s. Additionally, some major urban centers in the United States, such as areas of New Orleans are situated in low-lying flood plains, PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 66533 presenting increased risk from storm surges. The Administrator finds that the most serious risk of adverse effects is presented by the increased risk of storm surge and flooding in coastal areas from sea level rise. Current observations of sea level rise are now contributing to increased risk of storm surge and flooding in coastal areas, and there is reason to find that these areas are now endangered by human-induced climate change. The conclusion in the assessment literature that there is the potential for hurricanes to become more intense with increasing temperatures (and even some evidence that Atlantic hurricanes have already become more intense) reinforces the judgment that coastal communities are now endangered by human-induced climate change, and may face substantially greater risk in the future. The Administrator has concluded that even if there is a low probability of raising the destructive power of hurricanes, this threat is enough to support a finding that coastal communities are endangered by greenhouse gas air pollution. In addition, coastal areas face other adverse impacts from sea level rise such as shoreline retreat, erosion, wetland loss and other effects. The increased risk associated with these adverse impacts also endangers the welfare of current and future generations, with an increasing risk of greater adverse impacts in the future. Overall, the evidence on risk of adverse impacts for coastal areas from sea level rise provides clear support for finding that greenhouse gas air pollution endangers the welfare of current and future generations. e. Energy, Infrastructure and Settlements The Administrator also considered the impacts of climate change on energy consumption and production, and on key climate-sensitive aspects of the nation’s infrastructure and settlements. For the energy sector, the Administrator finds clear evidence that temperature increases will change heating and cooling demand, and to varying degrees across the country; however, under current conditions it is unclear whether or not net demand will increase or decrease. While the impacts on net energy demand may be viewed as generally neutral for purposes of making an endangerment determination, climate change is expected to call for an increase in electricity production, especially supply for peak demand. The U.S. energy sector, which relies heavily on water for cooling capacity and E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66534 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations hydropower, may be adversely impacted by changes to water supply in reservoirs and other water bodies. With respect to infrastructure, climate change vulnerabilities of industry, settlement and society are mainly related to extreme weather events rather than to gradual climate change. The significance of gradual climate change, e.g., increases in the mean temperature, lies mainly in changes in the intensity and frequency of extreme events. Extreme weather events could threaten U.S. energy infrastructure (transmission and distribution), transportation infrastructure (roads, bridges, airports and seaports), water infrastructure, and other built aspects of human settlements. Moreover, soil subsidence caused by the melting of permafrost in the Arctic region is a risk to gas and oil pipelines, electrical transmission towers, roads, and water systems. Vulnerabilities for industry, infrastructures, settlements, and society to climate change are generally greater in certain high-risk locations, particularly coastal and riverine areas, and areas whose economies are closely linked with climate-sensitive resources. Additionally, infrastructures are often connected, meaning that an impact on one can also affect others. A significant fraction of U.S. infrastructure is located in coastal areas. In these locations, rising sea levels are likely to lead to direct losses (e.g., equipment damage from flooding) as well as indirect effects such as the costs associated with raising vulnerable assets to higher levels. Water infrastructure, including drinking water and wastewater treatment plants, and sewer and storm water management systems, may be at greater risk of flooding, sea level rise and storm surge, low flows, saltwater intrusion, and other factors that could impair performance and damage costly investments. Within settlements experiencing climate change stressors, certain parts of the population may be especially vulnerable based on their circumstances. These include the poor, the elderly, the very young, those already in poor health, the disabled, those living alone, and/or indigenous populations dependent on one or a few resources. In Alaska, indigenous communities are likely to experience disruptive impacts, including shifts in the range or abundance of wild species crucial to their livelihoods and wellbeing. Overall, the evidence strongly supports the view that climate change presents risks of serious adverse impacts on public welfare from the risk to energy production and distribution as VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 well as risks to infrastructure and settlements. f. Ecosystems and Wildlife The Administrator considered the impacts of climate change on ecosystems and wildlife and the services they provide. The Administrator finds clear evidence that climate change is exerting major influences on natural environments and biodiversity, and these influences are generally expected to grow with increased warming. Observed changes in the life cycles of plants and animals include shifts in habitat ranges, timing of migration patterns, and changes in reproductive timing and behavior. The underlying assessment literature finds with high confidence that substantial changes in the structure and functioning of terrestrial ecosystems are very likely to occur with a global warming greater than 2 to 3 °C above pre-industrial levels, with predominantly negative consequences for biodiversity and the provisioning of ecosystem goods and services. With global average temperature changes above 2 °C, many terrestrial, freshwater, and marine species (particularly endemic species) are at a far greater risk of extinction than in the geological past. Climate change and ocean acidification will likely impair a wide range of planktonic and other marine calcifiers such as corals. Even without ocean acidification effects, increases in sea surface temperature of about 1–3 °C are projected to result in more frequent coral bleaching events and widespread mortality. In the Arctic, wildlife faces great challenges from the effects of climatic warming, as projected reductions in sea ice will drastically shrink marine habitat for polar bears, ice-inhabiting seals, and other animals. Some common forest types are projected to expand, such as oakhickory, while others are projected to contract, such as maple-beech-birch. Still others, such as spruce-fir, are likely to disappear from the contiguous United States. Changes in plant species composition in response to climate change can increase ecosystem vulnerability to other disturbances, including wildfires and biological invasion. Disturbances such as wildfires and insect outbreaks are increasing in the United States and are likely to intensify in a warmer future with warmer winters, drier soils and longer growing seasons. The areal extent of drought-limited ecosystems is projected to increase 11 percent per °C warming in the United States. In California, temperature increases greater than 2 °C may lead to conversion of shrubland PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 into desert and grassland ecosystems and evergreen conifer forests into mixed deciduous forests. Greater intensity of extreme events may alter disturbance regimes in coastal ecosystems leading to changes in diversity and ecosystem functioning. Species inhabiting salt marshes, mangroves, and coral reefs are likely to be particularly vulnerable to these effects. The Administrator finds that the total scientific record provides compelling support for finding that the greenhouse gas air pollution leads to predominantly negative consequences for biodiversity and the provisioning of ecosystem goods and services for ecosystems and wildlife important for public welfare in the U.S., both for current and future generations. The severity of risks and impacts may only increase over time with accumulating greenhouse gas concentrations and associated temperature increases and precipitation changes. g. Summary of the Administrator’s Finding of Endangerment to Public Welfare The Administrator has considered how elevated concentrations of the wellmixed greenhouse gases and associated climate change affect public welfare by evaluating numerous and far-ranging risks to food production and agriculture, forestry, water resources, sea level rise and coastal areas, energy, infrastructure, and settlements, and ecosystems and wildlife. For each of these sectors, the evidence provides support for a finding of endangerment to public welfare. The evidence concerning adverse impacts in the areas of water resources and sea level rise and coastal areas provide the clearest and strongest support for an endangerment finding, both for current and future generations. Strong support is also found in the evidence concerning infrastructure and settlements, as well ecosystems and wildlife. Across the sectors, the potential serious adverse impacts of extreme events, such as wildfires, flooding, drought, and extreme weather conditions provide strong support for such a finding. Water resources across large areas of the country are at serious risk from climate change, with effects on water supplies, water quality, and adverse effects from extreme events such as floods and droughts. Even areas of the country where an increase in water flow is projected could face water resource problems from the supply and water quality problems associated with temperature increases and precipitation variability, and could face the increased risk of serious adverse effects from extreme events, such as floods and E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations drought. The severity of risks and impacts is likely to increase over time with accumulating greenhouse gas concentrations and associated temperature increases and precipitation changes. Overall, the evidence on risk of adverse impacts for coastal areas provides clear support for a finding that greenhouse gas air pollution endangers the welfare of current and future generations. The most serious potential adverse effects are the increased risk of storm surge and flooding in coastal areas from sea level rise and more intense storms. Observed sea level rise is already increasing the risk of storm surge and flooding in some coastal areas. The conclusion in the assessment literature that there is the potential for hurricanes to become more intense (and even some evidence that Atlantic hurricanes have already become more intense) reinforces the judgment that coastal communities are now endangered by human-induced climate change, and may face substantially greater risk in the future. Even if there is a low probability of increasing the destructive power of hurricanes, this threat is enough to support a finding that coastal communities are endangered by greenhouse gas air pollution. In addition, coastal areas face other adverse impacts from sea level rise such as land loss due to inundation, erosion, wetland submergence, and habitat loss. The increased risk associated with these adverse impacts also endangers public welfare, with an increasing risk of greater adverse impacts in the future. Strong support for an endangerment finding is also found in the evidence concerning energy, infrastructure, and settlements, as well ecosystems and wildlife. While the impacts on net energy demand may be viewed as generally neutral for purposes of making an endangerment determination, climate change is expected to result in an increase in electricity production, especially to meet peak demand. This increase may be exacerbated by the potential for adverse impacts from climate change on hydropower resources as well as the potential risk of serious adverse effects on energy infrastructure from extreme events. Changes in extreme weather events threaten energy, transportation, and water resource infrastructure. Vulnerabilities of industry, infrastructure, and settlements to climate change are generally greater in high-risk locations, particularly coastal and riverine areas, and areas whose economies are closely linked with climate-sensitive resources. Climate VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 change will likely interact with and possibly exacerbate ongoing environmental change and environmental pressures in settlements, particularly in Alaska where indigenous communities are facing major environmental and cultural impacts on their historic lifestyles. Over the 21st century, changes in climate will cause some species to shift north and to higher elevations and fundamentally rearrange U.S. ecosystems. Differential capacities for range shifts and constraints from development, habitat fragmentation, invasive species, and broken ecological connections will likely alter ecosystem structure, function, and services, leading to predominantly negative consequences for biodiversity and the provision of ecosystem goods and services. With respect to food production and agriculture, there is a potential for a net benefit in the near term for certain crops, but there is significant uncertainty about whether this benefit will be achieved given the various potential adverse impacts of climate change on crop yield, such as the increasing risk of extreme weather events. Other aspects of this sector may be adversely affected by climate change, including livestock management and irrigation requirements, and there is a risk of adverse effect on a large segment of the total crop market. For the near term, the concern over the potential for adverse effects in certain parts of the agriculture sector appears generally comparable to the potential for benefits for certain crops. However, the body of evidence points towards increasing risk of net adverse impacts on U.S. food production and agriculture over time, with the potential for significant disruptions and crop failure in the future. For the near term, the Administrator finds the beneficial impact on forest growth and productivity in certain parts of the country from elevated carbon dioxide concentrations and temperature increases to date is offset by the clear risk from the observed increases in wildfires, combined with risks from the spread of destructive pests and disease. For the longer term, the risk from adverse effects increases over time, such that overall climate change presents serious adverse risks for forest productivity. There is compelling reason to find that the support for a positive endangerment finding increases as one considers expected future conditions where temperatures continue to rise. Looking across all of the sectors discussed above, the evidence provides compelling support for finding that PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 66535 greenhouse gas air pollution endangers the public welfare of both current and future generations. The risk and the severity of adverse impacts on public welfare are expected to increase over time. h. Impacts in Other World Regions That Can Affect the U.S Population While the finding of endangerment to public health and welfare discussed above is based on impacts in the United States, the Administrator also considered how human-induced climate change in other regions of the world may in turn affect public welfare in the United States. According to the USGCRP report of June 2009 and other sources, climate change impacts in certain regions of the world may exacerbate problems that raise humanitarian, trade, and national security issues for the United States.32 The IPCC identifies the most vulnerable world regions as the Arctic, because of the effects of high rates of projected warming on natural systems; Africa, especially the sub-Saharan region, because of current low adaptive capacity as well as climate change; small islands, due to high exposure of population and infrastructure to risk of sea-level rise and increased storm surge; and Asian mega-deltas, such as the Ganges-Brahmaputra and the Zhujiang, due to large populations and high exposure to sea level rise, storm surge, and river flooding. Climate change has been described as a potential threat multiplier with regard to national security issues. The Administrator acknowledges these kinds of risks do not readily lend themselves to precise analyses or future projections. However, given the unavoidable global nature of the climate change problem, it is appropriate and prudent to consider how impacts in other world regions may present risks to the U.S. population. Because humaninduced climate change has the potential to aggravate natural resource, trade, and humanitarian issues in other world regions, which in turn may contribute to the endangerment of public welfare in the United States, this provides additional support for the Administrator’s finding that the greenhouse gas air pollution is reasonably anticipated to endanger the public welfare of current and future 32 ‘‘In an increasingly interdependent world, U.S. vulnerability to climate change is linked to the fates of other nations. For example, conflicts or mass migrations of people resulting from food scarcity and other resource limits, health impacts or environmental stresses in other parts of the world could threaten U.S. national security.’’ (Karl et al., 2009). E:\FR\FM\15DER4.SGM 15DER4 66536 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 generations of the United States population. i. Summary of Key Public Comments on Endangerment to Public Welfare Several public commenters point out the anticipated benefits that increasing carbon dioxide levels and temperatures will have on agricultural crops. In addition, commenters note how U.S. agricultural productivity, in particular, has been steadily rising over the last 100 years. Responses to major comments are found here and more detailed responses are found in the Response to Comments document. The Administrator acknowledges that plants including agricultural crops respond to carbon dioxide positively based on numerous well-documented studies. However, previous assessments of food production and agriculture have been modified to highlight increasing vulnerability, stress, and adverse impacts from climate change over time, based on improvements in the understanding of plant physiology, concern over impacts on plant pests and pathogens, and the implications of changes in average temperatures for temperature extremes and for changes in the patterns of precipitation and evaporation. While it is still the case today and for the next few years that climate change benefits agriculture in some places and harms them in others, the Administrator considers that the far larger temperature increases expected over coming decades and beyond on the ‘‘business as usual’’ trajectory will put significant stresses on agriculture and land resources in all regions of the United States. The Administrator prudently considers increased climate variability associated with a warming climate, which may overwhelm the positive plant responses from elevated carbon dioxide over time. Further, the effects of climate change on weeds, insect pests, and pathogens are recognized as key factors in determining plant damage in future decades. The Administrator also notes that scientific literature clearly supports the finding that drought frequency and severity are projected to increase in the future over much of the United States, which will likely reduce crop yields because of excesses or deficits of water. Vulnerability to extended drought, according to IPCC, has been documented as already increasing across North America. Further, based on review of the assessment literature, the Administrator considers multiple stresses, such as limited availability of water resources, loss of biodiversity, and air pollution, which are likely to increase sensitivity and reduce VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 resilience in the agricultural sector to climate change over time. Similar to food production and agriculture, public commenters often noted that forest productivity is projected to increase in the coming years due to the direct stimulatory effect of carbon dioxide on plant growth combined with warmer temperatures and thus extended growing seasons. The Administrator notes this phenomenon has been well documented by numerous studies but recognizes that increased productivity will be associated with significant variation at local and regional scales. The Administrator considers that climate strongly influences forest productivity and composition, and the frequency and magnitude of disturbances that impact forests. Based on the most recent IPCC assessment of the scientific literature, several recent studies confirm previous findings that temperature and precipitation changes in future decades will modify, and often limit, direct carbon dioxide effects on plants. For example, increased temperatures may reduce carbon dioxide effects indirectly, by increasing water demand. The Administrator also considers that new research more firmly establishes the negative impacts of increased climate variability. Projected changes in the frequency and severity of extreme climate events have significant consequences for forestry production and amplify existing stresses to land resources in the future. Several public commenters maintain that wildfires are primarily the result of natural climatic factors and not climate change and dispute that they are or will increase in the future. The Administrator notes the scientific literature and assessment reports provide several lines of evidence that suggest wildfires will likely increase in frequency over the next several decades because of climate warming. Wildfires and droughts, among other extreme events (e.g., hurricanes) that cause forest damage, pose the largest threats over time to forest ecosystems. The assessment literature suggests that large, stand-replacing wildfires will likely increase in frequency over the next several decades because of climate warming and general climate warming encourages wildfires by extending the summer period that dries fuels, promoting easier ignition and faster spread. Furthermore, current climate modeling studies suggest that increased temperatures and longer growing seasons will elevate wildfire risk in connection with increased aridity. PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 V. The Administrator’s Finding That Emissions of Greenhouse Gases From CAA Section 202(a) Sources Cause or Contribute to the Endangerment of Public Health and Welfare As discussed in Section IV.A of these Findings, the Administrator is defining the air pollution for purposes of the endangerment finding to be the elevated concentration of well-mixed greenhouse gases in the atmosphere. The second step of the two-part endangerment test is for the Administrator to determine whether the emission of any air pollutant emitted from new motor vehicles cause or contribute to this air pollution. This is referred to as the cause or contribute finding, and is the second finding by the Administrator in this action. Section V.A of these Findings describes the Administrator’s definition and scope of the air pollutant ‘‘wellmixed greenhouse gases.’’ Section V.B of these Findings puts forth the Administrator’s finding that emissions of well-mixed greenhouse gases from new motor vehicles contribute to the air pollution which is reasonably anticipated to endanger public health and welfare. Section V.C of these Findings provides responses to some of the key comments on these issues. See Response to Comments document Volume 10 for responses to other significant comments on the cause or contribute finding. More detailed emissions data summarized in the discussion below can be found in Appendix B of the TSD. A. The Administrator’s Definition of the ‘‘Air Pollutant’’ As discussed in the Proposed Findings, to help appreciate the distinction between air pollution and air pollutant, the air pollution can be thought of as the total, cumulative stock in the atmosphere, while the air pollutant, can be thought of as the flow that changes the size of the total stock. Given this relationship, it is not surprising that the Administrator is defining the air pollutant similar to the air pollution; while the air pollution is the concentration (e.g., stock) of the well-mixed greenhouse gases in the atmosphere, the air pollutant is the same combined grouping of the wellmixed greenhouse gases, the emissions of which are analyzed for contribution (e.g., the flow into the stock). Thus, the Administrator is defining the air pollutant as the aggregate group of the same six long-lived and directlyemitted greenhouse gases: Carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 and sulfur hexafluoride. As noted above, this definition of a single air pollutant made up of these well-mixed greenhouse gases is similar to definitions of other air pollutants that are comprised of substances that share common attributes with similar effects on public health or welfare (e.g., particulate matter and volatile organic compounds). The common attributes shared by these six greenhouse gases are discussed in detail in Section IV.A of these Findings, where the Administrator defined the ‘‘air pollution’’ for purposes of the endangerment finding. These same common attributes support the Administrator grouping these six greenhouse gases for purposes of defining a single air pollutant as well. These attributes include the fact that they are all greenhouse gases that are directly emitted (i.e., they are not formed through secondary processes in the atmosphere from precursor emissions); they are sufficiently longlived in the atmosphere such that, once emitted, concentrations of each gas become well mixed throughout the entire global atmosphere; and they exert a climate warming effect by trapping outgoing, infrared heat that would otherwise escape to space. Moreover, the radiative forcing effect of these six greenhouse gases is well understood. Furthermore, these six greenhouse gases are currently the common focus of climate science and policy. For example, the UNFCCC, signed and ratified by the U.S. in 1992, requires its signatories to ‘‘develop, periodically update, publish and make available * * * national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol 33, using comparable methodologies * * * ’’ 34 To date, the focus of UNFCCC actions and discussions has been on the six greenhouse gases that are the same focus of these findings. As a Party to the UNFCCC, EPA annually submits the Inventory of U.S. Greenhouse Gas Emissions and Sinks to the Convention, which reports on national emissions of anthropogenic emissions of the wellmixed greenhouse gases. International discussions about a post-Kyoto agreement also focus on the well-mixed greenhouse gases. 33 The Montreal Protocol covers ozone-depleting substances which may also share physical attributes of the six key greenhouse gases in this action, but they do not share other attributes such as being the focus of climate science and policy. See section * * *. 34 UNFCCC Art. 4.1(b). VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 As noted above, grouping of many substances with common attributes as a single pollutant is common practice under the CAA. Thus, doing so here is not novel. Indeed CAA section 302(g) defines air pollutant as ‘‘any air pollutant agent or combination of such agents, * * * ’’ CAA § 302(g) (emphasis added). Thus, it is clear that the term ‘‘air pollutant’’ is not limited to individual chemical compounds. In determining that greenhouse gases are within the scope of this definition, the Supreme Court described section 302(g) as a ‘‘sweeping’’ and ‘‘capacious’’ definition that unambiguously included greenhouse gases, that are ‘‘unquestionably ‘agents’ of air pollution.’’ Massachusetts v. EPA, 549 U.S. at 528, 532, 529 n.26. Although the Court did not interpret the term ‘‘combination of’’ air pollution agents, there is no reason this phrase would be interpreted any less broadly. Congress used the term ‘‘any’’, and did not qualify the kind of combinations that the agency could define as a single air pollutant. Congress provided EPA broad discretion to determine appropriate combinations of compounds that should be treated as a singe air pollutant.35 For the same reasons discussed in Section IV.A above, at this time, only carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride share all of these common attributes and thus they are the only substances that the Administrator finds to meet the definition of ‘‘well-mixed greenhouse gas’’ at this time.36 Also as noted above, if in the future other substances are shown to meet the same criteria they may be added to the definition of this single air pollutant. The Administrator is aware that CAA section 202(a) source categories do not emit all of the substances meeting the definition of well-mixed greenhouse gases. But that does not change the fact that all of these greenhouse gases share the attributes that make grouping them as a single air pollutant reasonable. As discussed further below, the reasonableness of this grouping does not turn on the particular source category 35 Indeed, the greenhouse gases hydrofluorocarbons and perfluorocarbons each are already a combination of multiple compounds. 36 The term ‘‘well-mixed greenhouse gases’’ is based on one of the shared attributes discussed above—these greenhouse gases are sufficiently longlived in the atmosphere such that, once emitted, concentrations of each gas become well mixed throughout the entire global atmosphere. Defining the air pollutant to be the combination of these six well-mixed greenhouse gases is based in part on this attribute—after the gases are emitted, they are sufficiently long-lived in the atmosphere to become well mixed as part of the air pollution. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 66537 being evaluated in a contribution finding. B. The Administrator’s Finding Regarding Whether Emissions of the Air Pollutant From Section 202(a) Source Categories Cause or Contribute to the Air Pollution That May Be Reasonably Anticipated To Endanger Public Health and Welfare The Administrator finds that emissions of the well-mixed greenhouse gases from new motor vehicles contribute to the air pollution that may reasonably be anticipated to endanger public health and welfare. This contribution finding is for all of the CAA section 202(a) source categories and the Administrator considered emissions from all of these source categories. The relevant mobile sources under CAA section 202 (a)(1) are ‘‘any class or classes of new motor vehicles or new motor vehicle engines, * * *.’’ CAA section 202(a)(1) (emphasis added). The new motor vehicles and new motor vehicle engines (hereinafter ‘‘CAA section 202(a) source categories’’) addressed are: Passenger cars, light-duty trucks, motorcycles, buses, and medium and heavy-duty trucks. Detailed combined greenhouse gas emissions data for CAA section 202(a) source categories are presented in Appendix B of the TSD.37 The Administrator reached her decision after reviewing emissions data on the contribution of CAA section 202(a) source categories relative to both global greenhouse gas emissions and U.S. greenhouse gas emissions. Given that CAA section 202(a) source categories are responsible for about 4 percent of total global greenhouse gas emissions, and for just over 23 percent of total U.S. greenhouse gas emissions, the Administrator finds that both of these comparisons, independently and together, support a finding that CAA section 202(a) source categories contribute to the air pollution that may be reasonably anticipated to endanger public health and welfare. The Administrator is not placing primary weight on either approach; rather she finds that both approaches clearly establish that emissions of the wellmixed greenhouse gases from section 202(a) source categories contribute to air pollution with may reasonably be anticipated to endanger public health and welfare. As the Supreme Court noted, ‘‘[j]udged by any standard, U.S. 37 For section 202(a) source categories, only the hydrofluorocarbon emissions related to passenger compartment cooling are included. Emissions from refrigeration units that may be attached to trucks are considered emissions from nonroad engines under CAA section 213. E:\FR\FM\15DER4.SGM 15DER4 66538 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, * * * to global warming.’’ Massachusetts v. EPA, 549 U.S. at 525.38 1. Administrator’s Approach in Making This Finding Section 202(a) of the CAA source categories consist of passenger cars, light-duty trucks, motorcycles, buses, and heavy- and medium-duty trucks. As noted in the Proposed Findings, in the past the requisite contribution findings have been proposed concurrently with proposing emission standards for the relevant mobile source category. Thus, prior contribution findings often focused on a subset of the CAA section 202(a) (or other section) source categories. This final cause or contribute finding, however, is for all of the CAA section 202(a) source categories. The Administrator is considering emissions from all of these source categories in the determination. Section 202(a) source categories emit the following well-mixed greenhouse gases: carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons. As the basis for the Administrator’s determination, EPA analyzed historical data of emissions of the well-mixed greenhouse gases for motor vehicles and motor vehicle engines in the United States from 1990 to 2007. The Proposed Findings discussed a number of possible ways of assessing cause or contribute and the point was made that no single approach is required by the statute or has been used exclusively in previous determinations under the CAA. The Administrator also discussed how, consistent with prior cause or contribute findings and the science, she is using emissions as a proxy for contributions to atmospheric concentrations. This approach is reasonable for the well-mixed greenhouse gases, because cumulative emissions are responsible for the cumulative change in the concentrations in the atmosphere. Similarly, annual emissions are a perfectly reasonable proxy for annual incremental changes in atmospheric concentrations. In making a judgment about the contribution of emissions from CAA section 202(a) source categories, the Administrator focused on making a reasoned overall comparison of emissions from the CAA section 202(a) source categories to emissions from 38 Because the Administrator is defining the air pollutant as the combination of well-mixed greenhouse gases, she is not issuing a final contribution finding based on the alternative definition discussed in the proposed findings (e.g., each greenhouse gas as an individual air pollutant). VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 other sources of greenhouse gases. This allows a determination of how the CAA section 202(a) source categories compare to all of the other sources that together as a group make up the total emissions contributors to the air pollution problem. The relative importance of the CAA section 202(a) source categories is central to making the contribution determination. Both the magnitude of these emissions and the comparison of these emissions to other sources provide the basis to determine whether the CAA section 202(a) source categories may reasonably be judged as contributing to the air pollution problem. In many cases EPA makes this kind of comparison of source categories by a simple percentage calculation that compares the emissions from the source category at issue to a larger total group of emissions. Depending on the circumstances, a larger percentage often means a greater relative impact from that source category compared to the other sources that make up the total of emissions, and vice versa. However, the actual numerical percentages may have little meaning when viewed in isolation. The context of the comparison is needed to ensure the information is useful in evaluating the relative impact of one source compared to others. For example, the number of sources involved and the distribution of emissions across all of the sources can make a significant difference when evaluating the results of a percentage calculation. In some cases a certain percentage might mean almost all other sources are larger or much larger than the source at issue, while in other circumstances the same percentage could mean that the source at issue is in fact one of the larger contributors to the total. The Administrator therefore considered the totality of the circumstances in order to best understand the role played by CAA section 202(a) source categories. This is consistent with Congress’ intention for EPA to consider the cumulative impact of all sources of pollution. In that context, the global nature of the air pollution problem and the breadth of countries and sources emitting greenhouse gases means that no single country and no single source category dominate or are even close to dominating on a global scale. For example, the United States as a country is the second largest emitter of greenhouse gases, and emits approximately 18 percent of the world’s total greenhouse gases. The total emissions of greenhouse gases worldwide are from numerous sources and countries, with each country and PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 each source category contributing a relatively small percentage of the total emissions. That means that the relative ranking of countries or sources is not at all obvious from the magnitude of the percentage by itself. A country or a source may be a large contributor, in comparison to other countries or sources, even though its percentage contribution may appear relatively small. In this situation, addressing a global air pollution problem may call for many different sources and countries to address emissions even if none by itself dominates or comes close to dominating the global inventory. A somewhat analogous situation can be found in the ozone air pollution problem in the United States. Emissions of NOx and volatile organic compounds (VOCs) often come from numerous small sources, as well as certain large source categories. We have learned that successful ozone control strategies often need to take this into account, and address both the larger sources of NOx and VOCs as well as the many smaller sources, given the breadth of sources that as a group lead to the total inventory of VOCs and NOx. The global aspects of the greenhouse gas air pollution problem amplify this kind of situation many times over, where no single country or source category dominates or comes close to dominating the global inventory of greenhouse gas emissions. These unique, global aspects of the climate change problem tend to support consideration of contribution at lower percentage levels of emissions than might otherwise be considered appropriate when addressing a more typical local or regional air pollution problem. In this situation it is quite reasonable to consider emissions from source categories that are more important in relation to other sources, even if their absolute contribution initially may appear to be small. In addition, the Administrator is aware of the fact that the United States is the second largest emitter of wellmixed greenhouse gases in the world. As the United States evaluates how to address climate change, the Administrator will analyze the various sources of emissions and the source’s share of U.S. emissions. Thus, when analyzing whether a source category that emits well-mixed greenhouse gases in the United States contributes to the global problem, it is appropriate for the Administrator to consider how that source category fits into the larger picture of U.S. emissions. This ranking process within the United States allows the importance of the source category to E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations be seen compared to other U.S. sources, informing the judgment of the importance of emissions from this source category in any overall national strategy to address greenhouse gas emissions. It is in this broader context that EPA considered the contribution of CAA section 202(a) sources. This provides useful information in determining the importance that should be attached to the emissions from the CAA section 202(a) sources. In reaching her determination, the Administrator used two simple and straightforward comparisons to assess cause or contribute for CAA section 202(a) source categories: (1) As a share of total current global aggregate emissions of the well-mixed greenhouse gases; and (2) as a share of total current U.S. aggregate emissions of the wellmixed greenhouse gases. Total well-mixed greenhouse gas emissions from CAA section 202(a) source categories were compared to total global emissions of the well-mixed greenhouse gases. The total air pollution problem, as already discussed, is the elevated and climbing levels of the six greenhouse gas concentrations in the atmosphere, which are global in nature because these concentrations are globally well mixed (whether they are emitted from CAA section 202(a) source categories or any other source within or outside the United States). In addition, comparisons were also made to U.S. total well-mixed greenhouse gases emissions to appreciate how CAA section 202(a) source categories fit into the larger U.S. contribution to the global problem. It is typical for the Administrator to consider these kinds of comparisons of emissions of a pollutant in evaluating contribution to air pollution, such as the concentrations of that same pollutant in the atmosphere (e.g., the Administrator analyzes PM2.5 emissions to determine if a source category contributes to PM2.5 air pollution). When viewed in the circumstances discussed above, both of these comparisons provide useful information in determining whether these source categories should be judged as contributing to the total air pollution problem. a. Section 202(a) of the CAA—Share of Global Aggregate Emissions of the WellMixed Greenhouse Gases Global emissions of well-mixed greenhouse gases have been increasing, and are projected to continue increasing unless the major emitters take action to reduce emissions. Total global emissions of well-mixed greenhouse gases in 2005 (the most recent year for which data for all countries and all greenhouse gases are available) 39 were 38,726 teragrams of CO2-equivlant (TgCO2eq.) 40 This represents an increase in global greenhouse gas emissions of about 26 percent since 1990 (excluding land use, land use change and forestry). In 2005, total U.S. emissions of well-mixed greenhouse gases were responsible for 18 percent of global emissions, ranking only behind China, which was responsible for 19 66539 percent of global emissions of wellmixed greenhouse gases. In 2005 emissions of the well-mixed greenhouse gas pollutant from CAA section 202(a) source categories represented 4.3 percent of total global well-mixed greenhouse gas emissions and 28 percent of global transport wellmixed greenhouse gas emissions (Table 1 of these Findings). If CAA section 202(a) source categories’ emissions of well-mixed greenhouse gas were ranked against total well-mixed greenhouse gas emissions for entire countries, CAA section 202(a) source category emissions would rank behind only China, the United States as a whole, Russia, and India, and would rank ahead of Japan, Brazil, Germany and every other country in the world. Indeed, countries with lower emissions than the CAA section 202(a) source categories are members of the 17 ‘‘major economies’’ ‘‘that meet to advance the exploration of concrete initiatives and joint ventures that increase the supply of clean energy while cutting greenhouse gas emissions.’’ See https://www.state.gov/g/ oes/climate/mem/. It would be anomalous, to say the least, to consider Japan and these other countries as major players in the global climate change community and an integral part of the solution, but not find that CAA section 202(a) source category emissions contribute to the global problem. Thus, the Administrator finds that emission of well-mixed greenhouse gases from CAA section 202(a) source categories contribute to the air pollution of wellmixed greenhouse gases. TABLE 1—COMPARISON TO GLOBAL GREENHOUSE GAS (GHG) EMISSIONS (TG CO2E) Sec 202(a) share (percent) 2005 All U.S. GHG emissions .............................................................................................................................. Global transport GHG emissions ................................................................................................................. All global GHG emissions ............................................................................................................................ 7,109 5,968 38,726 23.5 28.0 4.3 The Administrator considered compared total emissions of the wellmixed greenhouse gases from CAA section 202(a) source categories to total U.S. emissions of the well-mixed greenhouse gases as an indication of the role these sources play in the total U.S. contribution to the air pollution problem causing climate change.41 In 2007, U.S. well-mixed greenhouse gas emissions were 7,150 TgCO2eq. The dominant gas emitted was carbon dioxide, mostly from fossil fuel combustion. Methane was the second largest well-mixed greenhouse gas, followed by N2O, and the fluorinated gases (HFCs, PFCs, and SF6). Electricity generation was the largest emitting sector (2,445 TgCO2eq or 34 percent of 39 The source of global greenhouse gas emissions data, against which comparisons are made, is the Climate Analysis Indicators Tool of the World Resources Institute (WRI) (2007). Note that for global comparisons, all emissions are from the year 2005, the most recent year for which data for all greenhouse gas emissions and all countries are available. WRI (2007) Climate Analysis Indicators Tool (CAIT). Available at https://cait.wri.org. Accessed August 5, 2009. 40 One teragram (Tg) = 1 million metric tons. 1 metric ton = 1,000 kg = 1.102 short tons = 2,205 lbs. Long-lived greenhouse gases are compared and summed together on a CO2 equivalent basis by multiplying each gas by its Global Warming Potential (GWPs), as estimated by IPCC. In accordance with UNFCCC reporting procedures, the U.S. quantifies greenhouse gas emissions using the 100-year time frame values for GWPs established in the IPCC Second Assessment Report. 41 Greenhouse gas emissions data for the United States in this section have been updated since the Proposed Findings to reflect EPA’s most up-to-date information, which includes data for the year 2007. The source of the U.S. greenhouse gas emissions data is the Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2007, published in 2009 (hereinafter ‘‘U.S. Inventory’’). erowe on DSK5CLS3C1PROD with RULES4 b. Section 202(a) of the CAA—Share of U.S. Aggregate Emissions of the WellMixed Greenhouse Gases VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\15DER4.SGM 15DER4 66540 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations total U.S. greenhouse gas emissions), followed by transportation (1,995 TgCO2eq or 28 percent) and industry (1,386 TgCO2eq or 19 percent). Emissions from the CAA section 202(a) source categories constitute the major part of the transportation sector. Land use, land use change, and forestry offset almost 15 percent of total U.S. emissions through net sequestration. Total U.S. well-mixed greenhouse gas emissions have increased by over 17 percent between 1990 and 2007. The electricity generation and transportation sectors have contributed the most to this increase. In 2007 emissions of well-mixed greenhouse gases from CAA section 202(a) source categories collectively were the second largest emitter of wellmixed greenhouse gases within the United States (behind the electricity generating sector), emitting 1,663 TgCO2eq and representing 23 percent of total U.S. emissions of well-mixed greenhouse gases (Table 2 of these Findings). The Administrator is keenly aware that the United States is the second largest emitter of well-mixed greenhouse gases. Part of analyzing whether a sector within the United States contributes to the global problem is to see how those emissions fit into the contribution from the United States as a whole. This informs her judgment as to the importance of emissions from this source category in any overall national strategy to address greenhouse gas emissions. Thus, it is relevant that CAA section 202(a) source categories are the second largest emitter of well-mixed greenhouse gases in the country. This is part of the Administrator looking at the totality of the circumstances. Based on this the Administrator finds that emission of well-mixed greenhouse gases from CAA section 202(a) source categories contribute to the air pollution of well-mixed greenhouse gases. TABLE 2—SECTORAL COMPARISON TO TOTAL U.S. GREENHOUSE GAS (GHG) EMISSIONS (TG CO2E) U.S. emissions 1990 1995 2000 2005 2006 2007 Section 202(a) GHG emissions ....................................... Share of U.S. (%) ............................................................ Electricity Sector emissions ............................................. Share of U.S. (%) ............................................................ Industrial Sector emissions .............................................. Share of U.S. (%) ............................................................ 1231.9 20.2% 1859.1 30.5% 1496.0 24.5% 1364.4 21.1% 1989.0 30.8% 1524.5 23.6% 1568.1 22.4% 2329.3 33.2% 1467.5 20.9% 1670.5 23.5% 2429.4 34.2% 1364.9 19.2% 1665.7 23.6% 2375.5 33.7% 1388.4 19.7% 1663.1 23.3% 2445.1 34.2% 1386.3 19.4% Total U.S. GHG emissions ....................................... 6098.7 6463.3 7008.2 7108.6 7051.1 7150.1 C. Response to Key Comments on the Administrator’s Cause or Contribute Finding EPA received numerous public comments regarding the Administrator’s proposed cause or contribute finding. Below is a brief discussion of some of the key comments. Responses to comments on this issue are also contained in the Response to Comments document, Volume 10. erowe on DSK5CLS3C1PROD with RULES4 1. The Administrator Reasonably Defined the ‘‘Air Pollutant’’ for the Cause or Contribute Analysis a. The Supreme Court Held that Greenhouse Gases Fit Within the Definition of ‘‘Air Pollutant’’ in the CAA Several commenters reiterate arguments already rejected by the Supreme Court, arguing that greenhouse gases do not fit into the definition of ‘‘air pollutant’’ under the CAA. In particular, at least one commenter contends that EPA must show how greenhouse gases impact or materially change ‘‘ambient air’’ when defining air pollutant and making the endangerment finding. This commenter argues that because carbon dioxide is a naturally occurring and necessary element in the atmosphere, it cannot be considered to materially change air. These and similar arguments were already rejected by the Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007). Briefs before the Supreme Court VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 also argued that carbon dioxide is an essential role for life on earth and therefore cannot be considered an air pollutant, and that the concentrations of greenhouse gases that are a potential problem are not in the ‘‘ambient air’’ that people breathe. The Court rejected all of these and other arguments, noting that the statutory text forecloses these arguments. ‘‘The Clean Air Act’s sweeping definition of ‘air pollutant’ includes ‘any air pollution agent or combination of such agents, including any physical, chemical * * * substance or matter which is emitted into or otherwise enters the ambient air . * * *’ § 7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word ‘any.’ Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt ‘physical [and] chemical * * * substance[s] which [are] emitted into * * * the ambient air.’ The statute is unambiguous.’’ 547 U.S. at 529–30 (footnotes omitted); see also id. at 530, n26 (the distinction regarding ambient air, however, finds no support in the text of the statute, which uses the phrase ‘‘the ambient air’’ without distinguishing between atmospheric layer.). Thus, the question of whether greenhouse gases fit within the definition of air pollutant PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 under the CAA has been decided by the Supreme Court and is not being revisited here. b. The Definition of Air Pollutant May Include Substances Not Emitted by CAA Section 202(a) Sources Many commenters argue that the definition of ‘‘air pollutant’’—here wellmixed greenhouse gases—cannot include PFCs and SF6 because they are not emitted by CAA section 202(a) motor vehicles and hence, cannot be part of any ‘‘air pollutant’’ emitted by such sources. They argue that by improperly defining ‘‘air pollutant’’ to include substances that are not present in motor vehicle emissions, the Agency has exceeded its statutory authority under CAA section 202(a). Commenters contend that past endangerment findings under CAA section 202(a) demonstrate EPA’s consistent approach of defining ‘‘air pollutant(s)’’ in accordance with the CAA’s clear direction, to include only those pollutants emitted from the relevant source category (citing Notice of Proposed Rulemaking for Heavy-Duty Engine and Vehicle Standards finding that ‘‘emissions of NOX, VOCs, SOX, and PM from heavy-duty trucks can reasonably be anticipated to endanger the public health or welfare.’’ (65 FR 35436, June 2, 2000). Commenters argue that EPA itself is inconsistent in the Proposed Findings, sometimes referring E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations to ‘‘air pollutant’’ as the group of six greenhouse gases, and other times falling back on the four greenhouse gases emitted by motor vehicles. EPA acknowledges that the Proposed Findings could have been clearer regarding the proposed definition of air pollutant, and how it was being applied to CAA section 202(a) sources, which emit only four of the six substances that meet the definition of well-mixed greenhouse gases. However, our interpretation does not exceed EPA’s authority under CAA section 202(a). It is reasonable to define the air pollutant under CAA section 202(a) to include substances that have similar attributes (as discussed above), even if not all of the substances that meet that definition are emitted by motor vehicles. For example, as commenters note, EPA has heavy duty truck standards applicable to VOCs and PM, but it is highly unlikely that heavy duty trucks emit every substance that is included in the group defined as VOC or PM. See 40 CFR 51.100(s) (defining volatile organic compound (VOC) as ‘‘any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions’’, a list of exemptions are also included in the definition); 40 CFR 51.100(oo) (defining particulate matter (PM) as ‘‘any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than 100 micrometers’’). In this circumstance the number of substances included in the definition of well-mixed greenhouse gases is much smaller than other ‘‘group’’ air pollutants (e.g., six greenhouse gases versus hundreds of VOCs), and CAA section 202(a) sources emit an easily discernible number of these six substances. However, this does not mean that the definition of the wellmixed greenhouse gases as the air pollutant is unreasonable. By defining well-mixed greenhouse gases as a single air pollutant comprised of six substances with common attributes, the Administrator is giving effect to these shared attributes and how they are relevant to the air pollution to which they contribute. The fact that these six substances share these common, relevant attributes is true regardless of the source category being evaluated for contribution. Grouping these six substances as one air pollutant is reasonable regardless of whether a contribution analysis is undertaken for CAA section 202(a) sources that emit one subset of the six substances (e.g., carbon dioxide, CH4, N20 and HFCs, but VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 not PFCs and SF6), or for another category of sources that may emit another subset. For example, electronics manufacturers that may emit N2O, PFCs, HFCs, SF6 and other fluorinated compounds, but not carbon dioxide or CH4 unless there is on-site fuel combustion. In other words, it is not necessarily the source category being evaluated for contribution that determines the reasonableness of defining a group air pollutant based on the shared attributes of the group. Even if EPA agreed with commenters, and defined the air pollutant as the group of four compounds emitted by CAA section 202(a) sources, it would not change the result. The Administrator would make the same contribution finding as it would have no material effect on the emissions comparisons discussed above. c. It Was Reasonable for the Administrator To Define the Single Air Pollutant as the Group of Substances With Common Attributes Several commenters disagree with EPA’s proposed definition of a single air pollutant composed of the six wellmixed greenhouse gases as a class. Commenters argue that the analogy to VOCs is misplaced because VOCs are all part of a defined group of chemicals, for which there are established quantification procedures, and for which there were extensive data showing that the group of compounds had demonstrated and quantifiable effects on ambient air and human health and welfare, and for which verifiable dispersion models existed. They contend this is in stark contrast to the entirely diverse set of organic and inorganic compounds EPA has lumped together for purposes of the Proposed Findings, and for which no model can accurately predict or quantify the actual impact or improvement resulting from controlling the compounds. Moreover, they argue that the gases EPA is proposing to list together as one pollutant are all generated by different processes and, if regulated, would require different types of controls; the four gases emitted by mobile sources can generally be limited only by using controls that are specific to each. At least one commenter argues that EPA cannot combine greenhouse gases into one pollutant because their common attribute is not a ‘‘physical, chemical, biological or radioactive property’’ (quoting from CAA section 302(g)), but rather their effect or impacts on the environment. They say this differs from VOCs, which share the common attribute of volatility, or PM PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 66541 which shares the physical property of being particles. As discussed above, the well-mixed greenhouse gases share physical attributes, as well as attributes based on sound policy considerations. The definition of ‘‘air pollutant’’ in CAA section 302(g) does not limit consideration of common attributes to those that are ‘‘physical, chemical, biological or radioactive property’’ as one commenter claims. Rather, the definition’s use of the adjectives ‘‘physical, chemical, biological or radioactive’’ refer to the different types of substance or matter that is emitted. It is not a limitation on what characteristics the Administrator may consider when deciding how to group similar substances when defining a single air pollutant. The common attributes that the Administrator considered when defining the well-mixed greenhouse gases are reasonable. While these six substances may originate from different processes, and require different control strategies, that does not detract from the fact that they are all long-lived, wellmixed in the atmosphere, directly emitted, of well-known radiative forcing, and generally grouped and considered together in climate change scientific and policy forums. Indeed, other group pollutants also originate from a variety of processes and a result may require different control technologies. For example, both a power plant and a dirt road can result in PM emissions, and the method to control such emissions at each source would be different. But these differences in origin or control do not undermine the reasonableness of considering PM as a single air pollutant. The fact that there are differences, as well as similarities, among the well-mixed greenhouse gases does not render the decision to group them together as one air pollutant unreasonable. 2. The Administrator’s Cause or Contribute Analysis Was Reasonable a. The Administrator Does Not Need To Find Significant Contribution, or Establish a Bright Line Many commenters essentially argue that EPA must establish a bright line below which it would never find contribution regardless of the air pollutant, air pollution, and other factors before the Agency. For example, some commenters argue that EPA must provide some basis for determining de minimis amounts that fall below the threshold of ‘‘contributing’’ to the endangerment of public health and welfare under CAA section 202(a). E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 66542 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations Commenters take issue with EPA’s statement that it ‘‘need not determine at this time the circumstances in which emissions would be trivial or de minimis and would not warrant a finding of contribution.’’ Commenters argue that EPA cannot act arbitrarily by determining that a constituent contributing a certain percent to endangerment in one instance is de minimis and in another is contributing to endangerment of public health and welfare. They request that EPA revise the preamble language to make clear that the regulated community can rely on its past determinations with respect to ‘‘contribution’’ determinations to predict future agency action and argue that EPA should promulgate guidance on how it determines whether a contribution exceeds a de minimis level for purposes of CAA section 202(a) before finalizing the proposal. The commenters that argue that the air pollution EPA must analyze to determine endangerment is limited to the air pollution resulting from new motor vehicles also argue that as a result, the contribution of emissions from new motor vehicles must be significant. They essentially contend that the endangerment and cause or contribute tests are inter-related and the universe of both tests is the same. In support of their argument, commenters argue that because the clause ‘‘cause, or contribute to, air pollution’’ is in plural form, it must be referring back to ‘‘any class or classes of new motor vehicles or new motor vehicle engines,’’ demonstrating that EPA must consider only the emissions from new motor vehicles which emit the air pollution which endangers. Since the Administrator issued the Proposed Findings, the DC Circuit issued another opinion discussing the concept of contribution. See Catawba County v. EPA, 571 F.3d 20 (DC Cir. 2009). This decision, along with others, supports the Administrator’s interpretation that the level of contribution under CAA section 202(a) does not need to be significant. The Administrator is not required to establish a bright line below which she would never find contribution under any circumstances. Finally, it is reasonable for the Administrator to apply a ‘‘totality-of-the-circumstances test to implement a statute that confers broad discretionary authority, even if the test lacks a definite ‘threshold’ or ‘clear line of demarcation to define an open-ended term.’’ Id. at 39 (citations omitted). In upholding EPA’s PM2.5 attainment and nonattainment designation decisions, the DC Circuit analyzed CAA VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 section 107(d), which requires EPA to designate an area as nonattainment if it ‘‘contributes to ambient air quality in a nearby area’’ not attaining the national ambient air quality standards. Id. at 35. The court noted that it had previously held that the term ‘‘contributes’’ is ambiguous in the context of CAA language. See EDF v. EPA, 82 F.3d 451, 459 (DC Cir. 1996). ‘‘[A]mbiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.’’ 571 F.3d at 35 (citing Nat’s Cable & Telecomms. Ass’c v. Brand X Internet Servs, 545 U.S. 967, 980 (2005)). The court then proceeded to consider and reject petitioners’ argument that the verb ‘‘contributes’’ in CAA section 107(d) necessarily connotes a significant causal relationship. Specifically, the DC Circuit again noted that the term is ambiguous, leaving it to EPA to interpret in a reasonable manner. In the context of this discussion, the court noted that ‘‘a contribution may simply exacerbate a problem rather than cause it * * * ’’ 571 F.3d at 39. This is consistent with the DC Circuit’s decision in Bluewater Network v. EPA, 370 F.3d 1 (DC Cir. 2004), in which the court noted that the term contribute in CAA section 213(a)(3) ‘‘[s]tanding alone, * * * has no inherent connotation as to the magnitude or importance of the relevant ‘share’ in the effect; certainly it does not incorporate any ‘significance’ requirement.’’ 370 F.3d at 13. The court found that the bare ‘‘contribute’’ language invests the Administrator with discretion to exercise judgment regarding what constitutes a sufficient contribution for the purpose of making an endangerment finding. Id. at 14. Finally, in Catawba County, the DC Circuit also rejected ‘‘petitioners’ argument that EPA violated the statute by failing to articulate a quantified amount of contribution that would trigger’’ the regulatory action. 571 F.3d at 39. Although petitioners preferred that EPA establish a bright-line test, the court recognized that the statute did not require that EPA ‘‘quantify a uniform amount of contribution.’’ Id. Given this context, it is entirely reasonable for the Administrator to interpret CAA section 202(a) to require some level of contribution that, while more than de minimis or trivial, does not rise to the level of significance. Moreover, the approach suggested by at least one commenter collapses the two prongs of the test by requiring that contribution must be significant because any climate change impacts upon which an endangerment determination is made result solely from the greenhouse gas PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 emissions of motor vehicles. It essentially eliminates the ‘‘contribute’’ part of the ‘‘cause or contribute’’ portion of the test. This approach was clearly rejected by the en banc court in Ethyl. 541 F.2d at 29 (rejecting the argument that the emissions of the fuel additive to be regulated must ‘‘in and of itself, i.e. considered in isolation, endanger[ ] public health.’’); see also Catawba County, 571 F.3d at 39 (noting that even if the test required significant contribution it would be reasonable for EPA to find a county’s addition of PM2.5 is significant even though the problem would persist in its absence). It is the commenter, not EPA that is ignoring the statutory language. Whether or not the clause ‘‘cause, or contribute to, air pollution’’ refers back to ‘‘any class or classes of new motor vehicles or new motor vehicle engines,’’ or to ‘‘emission of any air pollutant,’’ the language of CAA section 202(a) clearly contemplates that emission of an air pollutant from any class or classes may merely contribute to, versus cause, the air pollution which endangers. It is also reasonable for EPA to decline to establish a ‘‘bright-line ‘objective’ test of contribution.’’ 571 F.3d at 39. As noted in the Proposed Findings, when exercising her judgment, the Administrator not only considers the cumulative impact, but also looks at the totality of the circumstances (e.g., the air pollutant, the air pollution, the nature of the endangerment, the type of source category, the number of sources in the source category, and the number and type of other source categories that may emit the air pollutant) when determining whether the emissions justify regulation under the CAA. Id. (It is reasonable for an agency to adopt a totality-of-the-circumstances test). Even if EPA agreed that a level of significance was required to find contribution, for the reasons discussed above, EPA would find that the contribution from CAA section 202(a) source categories is significant. Their emissions are larger than the great majority of emitting countries, larger than several major emitting countries, and they constitute one of the largest parts of the U.S. emissions inventory. b. The Unique Global Aspects of Climate Change Are an Appropriate Consideration in the Contribution Analysis Some commenters disagree with statements in the Proposed Findings that the ‘‘unique, global aspects of the climate change problem tend to support a finding that lower levels of emissions should be considered to contribute to the air pollution than might otherwise E:\FR\FM\15DER4.SGM 15DER4 erowe on DSK5CLS3C1PROD with RULES4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations be appropriate when considering contribution to a local or regional air pollution problem.’’ They argue there is no basis in the CAA or existing EPA policy for this position, and that it reveals an apparent effort to expand EPA’s authority to the ‘‘truly trivial or de minimis’’ sources that are acknowledged to be outside the scope of regulation, in that it expands EPA’s authority to regulate pollutants to address global effects. Commenters also assert that contrary to EPA’s position, lower contribution numbers are appropriate when looking at local pollution, like nonattainment concerns—in other words, in the context of a statutory provision like CAA section 213 specifically aimed at targeting small source categories to help nonattainment areas meet air quality standards. However, they conclude this policy is simply inapplicable in the context of global climate change. As discussed above, the term ‘‘contribute’’ is ambiguous and subject to the Administrator’s reasonable interpretation. It is entirely appropriate for the Administrator to look at the totality of the circumstances when making a finding of contribution. In this case, the Administrator believes that the global nature of the problem justifies looking at contribution in a way that takes account of these circumstances. More specifically, because climate change is a global problem that results from global greenhouse gas emissions, there are more sources emitting greenhouse gases (in terms both of absolute numbers of sources and types of sources) than EPA typically encounters when analyzing contribution towards a more localized air pollution problem. From a percentage perspective, there are no dominating sources and fewer sources that would even be considered to be close to dominating. The global problem is much more the result of numerous and varied sources each of which emit what might seem to be smaller percentage amounts when compared to the total. The Administrator’s approach recognizes this reality, and focuses on evaluating the relative importance of the CAA section 202(a) source categories compared to other sources when viewed in this context. This recognition of the unique totality of the circumstances before the Administrator now as compared to previous contribution decisions is entirely appropriate. It is not an attempt by the Administrator to regulate ‘‘truly trivial or de minimis’’ sources, or to regulate sources based on their global effects. The Administrator is determining whether greenhouse gas VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 emissions from CAA section 202(a) sources contribute to an air pollution problem is endangering U.S. public health and welfare. As discussed in the Proposed Findings, no single greenhouse gas source category dominates on the global scale, and many (if not all) individual greenhouse gas source categories could appear small in comparison to the total, when, in fact, they could be very important contributors in terms of both absolute emissions or in comparison to other source categories, globally or within the United States. If the United States and the rest of the world are to combat the risks associated with global climate change, contributors must do their part even if their contributions to the global problem, measured in terms of percentage, are smaller than typically encountered when tackling solely regional or local environmental issues. The commenters’ approach, if used globally, would effectively lead to a tragedy of the commons, whereby no country or source category would be accountable for contributing to the global problem of climate change, and nobody would take action as the problem persists and worsens. The Administrator’s approach, on the contrary, avoids this kind of approach, and is a reasonable exercise of her discretion to determine contribution in the global context in which this issue arises. Importantly, as discussed above, the contribution from CAA section 202(a) sources is anything but trivial or de minimis under any interpretation of contribution. See, Massachusetts v. EPA, 549 U.S. at 1457–58 (‘‘Judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, * * * to global warming’’). c. The Administrator Reasonably Relied on Comparisons of Emissions From Existing CAA Section 202(a) Source Categories i. It Was Reasonable To Use Existing Emissions From Existing CAA Section 202(a) Source Categories Instead of Projecting Future Emissions From New CAA Section 202(a) Source Categories Many commenters argue that EPA improperly evaluated the emissions from the entire motor vehicle fleet, and it is required to limit its calculation to just emissions from new motor vehicles. Thus the emissions that EPA should consider in the cause or contribute determination is far less than the 4.3 percent of U.S. greenhouse gas emissions attributed to motor vehicles PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 66543 in the Proposed Findings, because this number includes both new and existing motor vehicles. One commenter calculated the emissions from new motor vehicles as being 1.8 percent of global emissions, assuming approximately one year of new motor vehicle production in the United States (11 million vehicles) in a total global count currently of approximately 600 million motor vehicles. In the Proposed Findings, EPA determined the emissions from the entire fleet of motor vehicles in the United States for a certain calendar year. EPA explained that, consistent with its traditional practice, it used the recent motor vehicle emissions inventory for the entire fleet as a surrogate for estimates of emissions for just new motor vehicles and engines. This was appropriate because future projected emissions are uncertain and current emissions data are a reasonable proxy for near-term emissions. In effect, EPA is using the inventory for the current fleet of motor vehicles as a reasonable surrogate for a projection of the inventory from new motor vehicles over the upcoming years. New motor vehicles are produced year in and year out, and over time the fleet changes over to a fleet composed of such vehicles. This occurs in a relatively short time frame, compared to the time period at issue for endangerment. Because new motor vehicles are produced each year, and continue to emit over their entire life, over a relatively short period of time the emission from the entire fleet is from vehicles produced after a certain date. In addition, the emissions from new motor vehicles are not limited to the emissions that occur only during the one year when they are new, but are emissions over the entire life of the vehicle. In such cases, EPA has traditionally used the recent emissions from the entire current fleet of motor vehicles as a reasonable surrogate for such a projection instead of trying to project and model those emissions. While this introduces some limited degree of uncertainty, the difference between recent actual emissions from the fleet and projected future emissions from the fleet is not expected to differ in any way that would substantively change the decision made concerning cause or contribution. There is not a specific numerical bright line that must be achieved, and the numerical percentages are not treated and do not need to be treated as precise values. This approach provides a reasonable and clear indication of the relative magnitudes involved, and EPA does not believe that attempting to make future E:\FR\FM\15DER4.SGM 15DER4 66544 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES4 projections (for both vehicles and the emissions value they are compared to) would provide any greater degree of accuracy or precision in developing such a relative comparison. ii. The Administrator Did Not Have To Use a Subset or Reduced Emissions Estimate From Existing CAA Section 202(a) Source Categories Several commenters note that although EPA looks at emissions from all motor vehicles regulated under CAA section 202(a) in its contribution analysis, the Presidential announcement in May 2009 indicated that EPA was planning to regulate only a subset of 202(a) sources. Thus, they question whether the correct contribution analysis should look only at the emissions from that subset and not all CAA section 202(a) sources. Some commenters also argue that because emission standards will not eliminate all greenhouse gas emissions from motor vehicles, the comparison should compare the amount of greenhouse gas emissions ‘‘reduced’’ by those standards to the global greenhouse emissions. They also contend that the cost of the new standards will cause individual consumers, businesses, and other vehicle purchasers to hold on to their existing vehicles to a greater extent, thereby decreasing the amount of emissions reductions attributable to the standard and appropriately considered in the contribution analysis. Some commenters go further and contend that EPA also can only include that incremental reduction that the EPA regulations will achieve beyond any reductions resulting from CAFE standards that NHTSA will set. Although the May announcement and September proposed rule involved only the light duty motor vehicle sector, the Administrator is making this finding for all classes of new motor vehicles under CAA section 202(a). Thus, although the announcement and proposed rule involve light duty vehicles, EPA is working to develop standards for the rest of the classes of new motor vehicles under CAA section 202(a). As the Supreme Court noted, EPA has ‘‘significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. Massachusetts v. EPA, 549 U.S. at 533. The argument that the Administrator can only look at that portion of emissions that will be reduced by any CAA section 202(a) standards, and even then only the reduction beyond those attributable to CAFE rules, finds no basis in the statutory language. The language in CAA section 202(a) requires that the Administrator set ‘‘standards VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 applicable to the emission of any air pollutant from [new motor vehicles], which in [her] judgment cause, or contribute to, air pollution which [endangers].’’ It does not say set ‘‘standards applicable to the emission of any air pollutant from [new motor vehicles], if in [her] judgment the emissions of that air pollutant as reduced by that standard cause, or contribute to, air pollution which [endangers].’’ As discussed above, the decisions on cause or contribute and endangerment are separate and distinct from the decisions on what emissions standards to set under CAA section 202(a). The commenter’s approach would improperly integrate these separate decisions. Indeed, because, as discussed above, the Administrator does not have to propose standards concurrent with the endangerment and cause or contribute findings, she would have to be prescient to know at the time of the contribution finding exactly the amount of the reduction that would be achieved by the standards to be set. As discussed above, for purposes of these findings we look at what would be the emissions from new motor vehicles if no action were taken. Current emissions from the existing CAA section 202(a) vehicle fleet are an appropriate estimate. d. The Administrator Reasonably Compared CAA Section 202(a) Source Emissions to Both Global and Domestic Emissions of Well-Mixed Greenhouse Gases EPA received many comments on the appropriate comparison(s) for the contribution analysis. Several commenters argue that in order to get around the ‘‘problem’’ of basing an endangerment finding upon a source category that contributes only 1.8 percent annually to global greenhouse gas emissions, EPA inappropriately also made comparisons to total U.S. greenhouse gas emissions. These commenters argue that a comparison of CAA section 202(a) source emissions to U.S. greenhouse gas emissions, versus global emissions, is arbitrary for purposes of the cause or contribute analysis, because it conflicts with the Administrator’s definition of ‘‘air pollution,’’ as well as the nature of global warming. They note that throughout the Proposed Findings, the Administrator focuses on the global nature of greenhouse gas. Thus, they continue, while the percentage share of motor vehicle emissions at the U.S. level may be relevant for some purposes, it is irrelevant to a finding of whether these emissions contribute to the air pollution, which the Administrator has proposed to define on PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 a global rather than a domestic basis. Commenters also accuse EPA of arbitrarily picking and choosing when it takes a global approach (e.g., endangerment finding) and when it does not (e.g., contribution findings). The language of CAA section 202(a) is silent regarding how the Administrator is to make her contribution analysis. While it requires that the Administrator assess whether emission of an air pollutant contributes to air pollution which endangers, it does not limit how she may undertake that assessment. It surely is reasonable that the Administrator look at how CAA section 202(a) source category emissions compare to global emissions on an absolute basis, by themselves. But the United States as a nation is the second largest emitter of greenhouse gases. It is entirely appropriate for the Administrator to decide that part of understanding how a U.S. source category emitting greenhouse gases fits into the bigger picture of global climate change is to appreciate how that source category fits into the contribution from the United States as a whole, where the United States as a country is a major emitter of greenhouse gases. Knowing that CAA section 202(a) source categories are the second largest emitter of well-mixed greenhouse gases in the country is relevant to understanding what role they play in the global problem and hence whether they ‘‘contribute’’ to the global problem. Moreover, the Administrator is not ‘‘picking and choosing’’ when she applies a global or domestic approach in these Findings. Rather, she is looking at both of these emissions comparisons as appropriate under the applicable science, facts, and law. e. The Amount of Well-Mixed Greenhouse Gas Emissions From CAA Section 202(a) Sources Reasonably Supports a Finding of Contribution Many commenters argue that the ‘‘cause or contribute’’ prong of the Proposal’s endangerment analysis fails to satisfy the applicable legal standard, which requires more than a minimal contribution to the ‘‘air pollution reasonably anticipated to endanger public health or welfare.’’ They contend that emissions representing approximately four percent of total global greenhouse gas emissions are a minimal contribution to global greenhouse gas concentrations. EPA disagrees. As stated above, CAA section 202(a) source category total emissions of well-mixed greenhouse gases are higher than most countries in the world; countries that the U.S. and others believe play a major role in the E:\FR\FM\15DER4.SGM 15DER4 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations global climate change problem. Moreover, the percent of global wellmixed greenhouse gas emissions that CAA section 202(a) source categories represent is higher than percentages that the EPA has found contribute to air pollution problems. See Bluewater Network, 370 F.3d at 15 (‘‘For Fairbanks, this contribution was equivalent to 1.2 percent of the total daily CO inventory for 2001.’’) As noted above, there is no bright line for assessing contribution, but as discussed in the Proposed Findings and above, when looking at a global problem like climate change, with many sources of emissions and no dominating sources from a global perspective, it is reasonable to consider that lower percentages contribute than one may consider when looking at a local or regional problem involving fewer sources of emissions. The Administrator agrees that ‘‘[j]udged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, * * * to global warming.’’ Massachusetts v. EPA, 549 U.S. at 525. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a ‘‘significant regulatory action’’ because it raises novel policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to Office of Management and Budget (OMB) recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). These Findings do not impose an information collection request on any person. erowe on DSK5CLS3C1PROD with RULES4 C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Because these Findings do not impose any requirements, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any requirements on small entities. The endangerment and cause or contribute findings do not in-and-of-themselves impose any new requirements but rather set forth the Administrator’s determination on whether greenhouse gases in the atmosphere may reasonably be anticipated to endanger public health or welfare, and whether emissions of greenhouse gases from new motor vehicles and engines contribute to this air pollution. Accordingly, the action affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the Findings. D. Unfunded Mandates Reform Act This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This finding does not impose any requirements on industry or other entities. E. Executive Order 13132: Federalism This action does not have federalism implications. Because this action does not impose requirements on any entities, it will not have substantial direct effects on the States, on the relationship between the national PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 66545 government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this action. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, nor does it impose any enforceable duties on any Indian tribes. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. Although the Administrator considered health and safety risks as part of these Findings, the Findings themselves do not impose a standard intended to mitigate those risks. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not a ‘‘significant energy action’’ as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy because it does not impose any requirements. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, 12(d) (15 U.S.C. at 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus E:\FR\FM\15DER4.SGM 15DER4 66546 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations erowe on DSK5CLS3C1PROD with RULES4 Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent VerDate Nov<24>2008 13:54 Dec 14, 2009 Jkt 220001 practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that these Findings will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Although the Administrator considered climate change risks to minority or low-income populations as part of these Findings, this action does not impose a standard intended to mitigate those risks and does not impose requirements on any entities. PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule will be effective January 14, 2010. Dated: December 7, 2009. Lisa P. Jackson, Administrator. [FR Doc. E9–29537 Filed 12–14–09; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\15DER4.SGM 15DER4

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ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 239 (Tuesday, December 15, 2009)]
[Rules and Regulations]
[Pages 66496-66546]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29537]

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Part V

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40 CFR Chapter I

Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act; Final Rule

Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 /
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OAR-2009-0171; FRL-9091-8]
RIN 2060-ZA14

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Administrator finds that six greenhouse gases taken in
combination endanger both the public health and the public welfare of
current and future generations. The Administrator also finds that the
combined emissions of these greenhouse gases from new motor vehicles
and new motor vehicle engines contribute to the greenhouse gas air
pollution that endangers public health and welfare under CAA section
202(a). These Findings are based on careful consideration of the full
weight of scientific evidence and a thorough review of numerous public
comments received on the Proposed Findings published April 24, 2009.

DATES: These Findings are effective on January 14, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2009-0171. All documents in the docket are listed on the
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at EPA's
Docket Center, Public Reading Room, EPA West Building, Room 3334, 1301
Constitution Avenue, NW., Washington, DC 20004. This Docket Facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Air Docket is (202)
566-1742.

FOR FURTHER INFORMATION CONTACT: Jeremy Martinich, Climate Change
Division, Office of Atmospheric Programs (MC-6207J), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: (202) 343-9927; fax number: (202) 343-2202; e-mail
address: ghgendangerment@epa.gov. For additional information regarding
these Findings, please go to the Web site https://www.epa.gov/climatechange/endangerment.html.

SUPPLEMENTARY INFORMATION:

Judicial Review

Under CAA section 307(b)(1), judicial review of this final action
is available only by filing a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit by February 16, 2010.
Under CAA section 307(d)(7)(B), only an objection to this final action
that was raised with reasonable specificity during the period for
public comment can be raised during judicial review. This section also
provides a mechanism for us to convene a proceeding for
reconsideration, `` `[i]f the person raising an objection can
demonstrate to EPA that it was impracticable to raise such objection
within [the period for public comment] or if the grounds for such
objection arose after the period for public comment (but within the
time specified for judicial review) and if such objection is of central
relevance to the outcome of this rule.' '' Any person seeking to make
such a demonstration to us should submit a Petition for Reconsideration
to the Office of the Administrator, Environmental Protection Agency,
Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW.,
Washington, DC 20004, with a copy to the person listed in the preceding
FOR FURTHER INFORMATION CONTACT section, and the Associate General
Counsel for the Air and Radiation Law Office, Office of General Counsel
(Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20004.
Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.

ACUS Administrative Conference of the United States
ANPR Advance Notice of Proposed Rulemaking
APA Administrative Procedure Act
CAA Clean Air Act
CAFE Corporate Average Fuel Economy
CAIT Climate Analysis Indicators Tool
CASAC Clean Air Scientific Advisory Committee
CBI Confidential Business Information
CCSP Climate Change Science Program
CFCs chlorofluorocarbons
CFR Code of Federal Regulations
CH4 methane
CO2 carbon dioxide
CO2e CO2-equivalent
CRU Climate Research Unit
DOT U.S. Department of Transportation
EO Executive Order
EPA U.S. Environmental Protection Agency
FR Federal Register
GHG greenhouse gas
GWP global warming potential
HadCRUT Hadley Centre/Climate Research Unit (CRU) temperature record
HCFCs hydrochlorofluorocarbons
HFCs hydrofluorocarbons
IA Interim Assessment report
IPCC Intergovernmental Panel on Climate Change
MPG miles per gallon
MWP Medieval Warm Period
N2O nitrous oxide
NAAQS National Ambient Air Quality Standards
NAICS North American Industry Classification System
NASA National Aeronautics and Space Administration
NF3 nitrogen trifluoride
NHTSA National Highway Traffic Safety Administration
NOAA National Oceanic and Atmospheric Administration
NOI Notice of Intent
NOX nitrogen oxides
NRC National Research Council
NSPS new source performance standards
NTTAA National Technology Transfer and Advancement Act of 1995
OMB Office of Management and Budget
PFCs perfluorocarbons
PM particulate matter
PSD Prevention of Significant Deterioration
RFA Regulatory Flexibility Act
SF6 sulfur hexafluoride
SIP State Implementation Plan
TSD technical support document
U.S. United States
UMRA Unfunded Mandates Reform Act of 1995
UNFCCC United Nations Framework Convention on Climate Change
USGCRP U.S. Global Climate Research Program
VOC volatile organic compound(s)
WCI Western Climate Initiative
WRI World Resources Institute

TABLE OF CONTENTS

I. Introduction
A. Overview
B. Background Information Helpful To Understand These Findings
1. Greenhouse Gases and Transportation Sources Under CAA Section
202(a)
2. Joint EPA and Department of Transportation Proposed
Greenhouse Gas Rule
C. Public Involvement
1. EPA's Initial Work on Endangerment
2. Public Involvement Since the April 2009 Proposed Endangerment
Finding
3. Issues Raised Regarding the Rulemaking Process
II. Legal Framework for This Action
A. Section 202(a) of the CAA--Endangerment and Cause or
Contribute
1. The Statutory Framework
2. Summary of Response to Key Legal Comments on the
Interpretation of the CAA Section 202(a) Endangerment and Cause or
Contribute Test

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B. Air Pollutant, Public Health and Welfare
III. EPA's Approach for Evaluating the Evidence Before It
A. The Science on Which the Decisions Are Based
B. The Law on Which the Decisions Are Based
C. Adaptation and Mitigation
D. Geographic Scope of Impacts
E. Temporal Scope of Impacts
F. Impacts of Potential Future Regulations and Processes that
Generate Greenhouse Gas Emissions
IV. The Administrator's Finding That Emissions of Greenhouse Gases
Endanger Public Health and Welfare
A. The Air Pollution Consists of Six Key Greenhouse Gases
1. Common Physical Properties of the Six Greenhouse Gases
2. Evidence That the Six Greenhouse Gases Are the Primary Driver
of Current and Projected Climate Change
3. The Six Greenhouse Gases Are Currently the Common Focus of
the Climate Change Science and Policy Communities
4. Defining Air Pollution as the Aggregate Group of Six
Greenhouse Gases Is Consistent With Evaluation of Risks and Impacts
Due to Human-Induced Climate Change
5. Defining the Air Pollution as the Aggregate Group of Six
Greenhouse Gases Is Consistent With Past EPA Practice
6. Other Climate Forcers Not Being Included in the Definition of
Air Pollution for This Finding
7. Summary of Key Comments on Definition of Air Pollution
B. The Air Pollution Is Reasonably Anticipated To Endanger Both
Public Health and Welfare
1. The Air Pollution Is Reasonably Anticipated To Endanger
Public Health
2. The Air Pollution Is Reasonably Anticipated To Endanger
Public Welfare
V. The Administrator's Finding That Greenhouse Gases From CAA
Section 202(a) Sources Cause or Contribute to the Endangerment of
Public Health and Welfare
A. The Administrator's Definition of the ``Air Pollutant''
B. The Administrator's Finding Whether Emissions of the Air
Pollutant From Section 202(a) Source Categories Cause or Contribute
to the Air Pollution That May Be Reasonably Anticipated To Endanger
Public Health and Welfare
C. Response to Key Comments on the Administrator's Cause or
Contribute Finding
1. The Administrator Reasonably Defined the ``Air Pollutant''
for the Cause or Contribute Analysis
2. The Administrator's Cause or Contribute Analysis Was
Reasonable
VI. Statutory and Executive Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act

I. Introduction

A. Overview

Pursuant to CAA section 202(a), the Administrator finds that
greenhouse gases in the atmosphere may reasonably be anticipated both
to endanger public health and to endanger public welfare. Specifically,
the Administrator is defining the ``air pollution'' referred to in CAA
section 202(a) to be the mix of six long-lived and directly-emitted
greenhouse gases: carbon dioxide (CO2), methane
(CH4), nitrous oxide (N2O), hydrofluorocarbons
(HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride
(SF6). In this document, these six greenhouse gases are
referred to as ``well-mixed greenhouse gases'' in this document (with
more precise meanings of ``long lived'' and ``well mixed'' provided in
Section IV.A).
The Administrator has determined that the body of scientific
evidence compellingly supports this finding. The major assessments by
the U.S. Global Climate Research Program (USGCRP), the
Intergovernmental Panel on Climate Change (IPCC), and the National
Research Council (NRC) serve as the primary scientific basis supporting
the Administrator's endangerment finding.\1\ The Administrator reached
her determination by considering both observed and projected effects of
greenhouse gases in the atmosphere, their effect on climate, and the
public health and welfare risks and impacts associated with such
climate change. The Administrator's assessment focused on public health
and public welfare impacts within the United States. She also examined
the evidence with respect to impacts in other world regions, and she
concluded that these impacts strengthen the case for endangerment to
public health and welfare because impacts in other world regions can in
turn adversely affect the United States.
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\1\ Section III of these Findings discusses the science on which
these Findings are based. In addition, the Technical Support
Document (TSD) accompanying these Findings summarizes the major
assessments from the USGCRP, IPCC, and NRC.
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The Administrator recognizes that human-induced climate change has
the potential to be far-reaching and multi-dimensional, and in light of
existing knowledge, that not all risks and potential impacts can be
quantified or characterized with uniform metrics. There is variety not
only in the nature and potential magnitude of risks and impacts, but
also in our ability to characterize, quantify and project such impacts
into the future. The Administrator is using her judgment, based on
existing science, to weigh the threat for each of the identifiable
risks, to weigh the potential benefits where relevant, and ultimately
to assess whether these risks and effects, when viewed in total,
endanger public health or welfare.
The Administrator has considered how elevated concentrations of the
well-mixed greenhouse gases and associated climate change affect public
health by evaluating the risks associated with changes in air quality,
increases in temperatures, changes in extreme weather events, increases
in food- and water-borne pathogens, and changes in aeroallergens. The
evidence concerning adverse air quality impacts provides strong and
clear support for an endangerment finding. Increases in ambient ozone
are expected to occur over broad areas of the country, and they are
expected to increase serious adverse health effects in large population
areas that are and may continue to be in nonattainment. The evaluation
of the potential risks associated with increases in ozone in attainment
areas also supports such a finding.
The impact on mortality and morbidity associated with increases in
average temperatures, which increase the likelihood of heat waves, also
provides support for a public health endangerment finding. There are
uncertainties over the net health impacts of a temperature increase due
to decreases in cold-related mortality, but some recent evidence
suggests that the net impact on mortality is more likely to be adverse,
in a context where heat is already the leading cause of weather-related
deaths in the United States.
The evidence concerning how human-induced climate change may alter
extreme weather events also clearly supports a finding of endangerment,
given the serious adverse impacts that can result from such events and
the increase in risk, even if small, of the occurrence and intensity of
events such as hurricanes and floods. Additionally, public health is
expected to be

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adversely affected by an increase in the severity of coastal storm
events due to rising sea levels.
There is some evidence that elevated carbon dioxide concentrations
and climate changes can lead to changes in aeroallergens that could
increase the potential for allergenic illnesses. The evidence on
pathogen borne disease vectors provides directional support for an
endangerment finding. The Administrator acknowledges the many
uncertainties in these areas. Although these adverse effects provide
some support for an endangerment finding, the Administrator is not
placing primary weight on these factors.
Finally, the Administrator places weight on the fact that certain
groups, including children, the elderly, and the poor, are most
vulnerable to these climate-related health effects.
The Administrator has considered how elevated concentrations of the
well-mixed greenhouse gases and associated climate change affect public
welfare by evaluating numerous and far-ranging risks to food production
and agriculture, forestry, water resources, sea level rise and coastal
areas, energy, infrastructure, and settlements, and ecosystems and
wildlife. For each of these sectors, the evidence provides support for
a finding of endangerment to public welfare. The evidence concerning
adverse impacts in the areas of water resources and sea level rise and
coastal areas provides the clearest and strongest support for an
endangerment finding, both for current and future generations. Strong
support is also found in the evidence concerning infrastructure and
settlements, as well ecosystems and wildlife. Across the sectors, the
potential serious adverse impacts of extreme events, such as wildfires,
flooding, drought, and extreme weather conditions, provide strong
support for such a finding.
Water resources across large areas of the country are at serious
risk from climate change, with effects on water supplies, water
quality, and adverse effects from extreme events such as floods and
droughts. Even areas of the country where an increase in water flow is
projected could face water resource problems from the supply and water
quality problems associated with temperature increases and
precipitation variability, as well as the increased risk of serious
adverse effects from extreme events, such as floods and drought. The
severity of risks and impacts is likely to increase over time with
accumulating greenhouse gas concentrations and associated temperature
increases and precipitation changes.
Overall, the evidence on risk of adverse impacts for coastal areas
provides clear support for a finding that greenhouse gas air pollution
endangers the welfare of current and future generations. The most
serious potential adverse effects are the increased risk of storm surge
and flooding in coastal areas from sea level rise and more intense
storms. Observed sea level rise is already increasing the risk of storm
surge and flooding in some coastal areas. The conclusion in the
assessment literature that there is the potential for hurricanes to
become more intense (and even some evidence that Atlantic hurricanes
have already become more intense) reinforces the judgment that coastal
communities are now endangered by human-induced climate change, and may
face substantially greater risk in the future. Even if there is a low
probability of raising the destructive power of hurricanes, this threat
is enough to support a finding that coastal communities are endangered
by greenhouse gas air pollution. In addition, coastal areas face other
adverse impacts from sea level rise such as land loss due to
inundation, erosion, wetland submergence, and habitat loss. The
increased risk associated with these adverse impacts also endangers
public welfare, with an increasing risk of greater adverse impacts in
the future.
Strong support for an endangerment finding is also found in the
evidence concerning energy, infrastructure, and settlements, as well
ecosystems and wildlife. While the impacts on net energy demand may be
viewed as generally neutral for purposes of making an endangerment
determination, climate change is expected to result in an increase in
electricity production, especially supply for peak demand. This may be
exacerbated by the potential for adverse impacts from climate change on
hydropower resources as well as the potential risk of serious adverse
effects on energy infrastructure from extreme events. Changes in
extreme weather events threaten energy, transportation, and water
resource infrastructure. Vulnerabilities of industry, infrastructure,
and settlements to climate change are generally greater in high-risk
locations, particularly coastal and riverine areas, and areas whose
economies are closely linked with climate-sensitive resources. Climate
change will likely interact with and possibly exacerbate ongoing
environmental change and environmental pressures in settlements,
particularly in Alaska where indigenous communities are facing major
environmental and cultural impacts on their historic lifestyles. Over
the 21st century, changes in climate will cause some species to shift
north and to higher elevations and fundamentally rearrange U.S.
ecosystems. Differential capacities for range shifts and constraints
from development, habitat fragmentation, invasive species, and broken
ecological connections will likely alter ecosystem structure, function,
and services, leading to predominantly negative consequences for
biodiversity and the provision of ecosystem goods and services.
There is a potential for a net benefit in the near term \2\ for
certain crops, but there is significant uncertainty about whether this
benefit will be achieved given the various potential adverse impacts of
climate change on crop yield, such as the increasing risk of extreme
weather events. Other aspects of this sector may be adversely affected
by climate change, including livestock management and irrigation
requirements, and there is a risk of adverse effect on a large segment
of the total crop market. For the near term, the concern over the
potential for adverse effects in certain parts of the agriculture
sector appears generally comparable to the potential for benefits for
certain crops. However, The body of evidence points towards increasing
risk of net adverse impacts on U.S. food production and agriculture
over time, with the potential for significant disruptions and crop
failure in the future.
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\2\ The temporal scope of impacts is discussed in more detail in
Section III.C. The phrase ``near term'' as used in this document
generally refers to the current time period from and the next few
decades. The phrase ``long term'' generally refers to a time frame
extending beyond that to approximately the middle to the end of this
century.
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For the near term, the Administrator finds the beneficial impact on
forest growth and productivity in certain parts of the country from
elevated carbon dioxide concentrations and temperature increases to
date is offset by the clear risk from the observed increases in
wildfires, combined with risks from the spread of destructive pests and
disease. For the longer term, the risk from adverse effects increases
over time, such that overall climate change presents serious adverse
risks for forest productivity. There is compelling reason to find that
the support for a positive endangerment finding increases as one
considers expected future conditions where temperatures continue to
rise.
Looking across all of the sectors discussed above, the evidence
provides compelling support for finding that greenhouse gas air
pollution endangers the public welfare of both current and

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future generations. The risk and the severity of adverse impacts on
public welfare are expected to increase over time.
The Administrator also finds that emissions of well-mixed
greenhouse gases from the transportation sources covered under CAA
section 202(a) \3\ contribute to the total greenhouse gas air
pollution, and thus to the climate change problem, which is reasonably
anticipated to endanger public health and welfare. The Administrator is
defining the air pollutant that contributes to climate change as the
aggregate group of the well-mixed greenhouse gases. The definition of
air pollutant used by the Administrator is based on the similar
attributes of these substances. These attributes include the fact that
they are sufficiently long-lived to be well mixed globally in the
atmosphere, that they are directly emitted, and that they exert a
climate warming effect by trapping outgoing, infrared heat that would
otherwise escape to space, and that they are the focus of climate
change science and policy.
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\3\ Section 202(a) source categories include passenger cars,
heavy-, medium and light-duty trucks, motorcycles, and buses.
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In order to determine if emissions of the well-mixed greenhouse
gases from CAA section 202(a) source categories contribute to the air
pollution that endangers public health and welfare, the Administrator
compared the emissions from these CAA section 202(a) source categories
to total global and total U.S. greenhouse gas emissions, finding that
these source categories are responsible for about 4 percent of total
global well-mixed greenhouse gas emissions and just over 23 percent of
total U.S. well-mixed greenhouse gas emissions. The Administrator found
that these comparisons, independently and together, clearly establish
that these emissions contribute to greenhouse gas concentrations. For
example, the emissions of well-mixed greenhouse gases from CAA section
202(a) sources are larger in magnitude than the total well-mixed
greenhouse gas emissions from every other individual nation with the
exception of China, Russia, and India, and are the second largest
emitter within the United States behind the electricity generating
sector. As the Supreme Court noted, ``[j]udged by any standard, U.S.
motor-vehicle emissions make a meaningful contribution to greenhouse
gas concentrations and hence, * * * to global warming.'' Massachusetts
v. EPA, 549 U.S. 497, 525 (2007).
The Administrator's findings are in response to the Supreme Court's
decision in Massachusetts v. EPA. That case involved a 1999 petition
submitted by the International Center for Technology Assessment and 18
other environmental and renewable energy industry organizations
requesting that EPA issue standards under CAA section 202(a) for the
emissions of carbon dioxide, methane, nitrous oxide, and
hydrofluorocarbons from new motor vehicles and engines. The
Administrator's findings are in response to this petition and are for
purposes of CAA section 202(a).

B. Background Information Helpful To Understand These Findings

This section provides some basic information regarding greenhouse
gases and the CAA section 202(a) source categories, as well as the
ongoing joint-rulemaking on greenhouse gases by EPA and the Department
of Transportation. Additional technical and legal background, including
a summary of the Supreme Court's Massachusetts v. EPA decision, can be
found in the Proposed Endangerment and Contribution Findings (74 FR
18886, April 24, 2009).
1. Greenhouse Gases and Transportation Sources Under CAA Section 202(a)
Greenhouse gases are naturally present in the atmosphere and are
also emitted by human activities. Greenhouse gases trap the Earth's
heat that would otherwise escape from the atmosphere, and thus form the
greenhouse effect that helps keep the Earth warm enough for life. Human
activities are intensifying the naturally-occurring greenhouse effect
by adding greenhouse gases to the atmosphere. The primary greenhouse
gases of concern that are directly emitted by human activities include
carbon dioxide, methane, nitrous oxide, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride. Other pollutants (such as
aerosols) and other human activities, such as land use changes that
alter the reflectivity of the Earth's surface, also cause climatic
warming and cooling effects. In these Findings, the term ``climate
change'' generally refers to the global warming effect plus other
associated changes (e.g., precipitation effects, sea level rise,
changes in the frequency and severity of extreme weather events) being
induced by human activities, including activities that emit greenhouse
gases. Natural causes also, contribute to climate change and climatic
changes have occurred throughout the Earth's history. The concern now,
however, is that the changes taking place in our atmosphere as a result
of the well-documented buildup of greenhouse gases due to human
activities are changing the climate at a pace and in a way that
threatens human health, society, and the natural environment. Further
detail on the state of climate change science can be found in Section
III of these Findings as well as the technical support document (TSD)
that accompanies this action (www.epa.gov/climatechange/endangerment.html).
The transportation sector is a major source of greenhouse gas
emissions both in the United States and in the rest of the world. The
transportation sources covered under CAA section 202(a)--the section of
the CAA under which these Findings occur--include passenger cars,
light- and heavy-duty trucks, buses, and motorcycles. These
transportation sources emit four key greenhouse gases: carbon dioxide,
methane, nitrous oxide, and hydrofluorocarbons. Together, these
transportation sources are responsible for 23 percent of total annual
U.S. greenhouse gas emissions, making this source the second largest in
the United States behind electricity generation.\4\
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\4\ The units for greenhouse gas emissions in these findings are
provided in carbon dioxide equivalent units, where carbon dioxide is
the reference gas and every other greenhouse gas is converted to its
carbon dioxide equivalent by using the 100-year global warming
potential (as estimated by the Intergovernmental Panel on Climate
Change (IPCC). assigned to each gas. The reference gas used is
CO2, and therefore Global Warming Potential (GWP)-
weighted emissions are measured in teragrams of CO2
equivalent (Tg CO2 eq.). In accordance with UNFCCC
reporting procedures, the United States quantifies greenhouse gas
emissions using the 100-year time frame values for GWPs established
in the IPCC Second Assessment Report.
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Further discussion of the emissions data supporting the
Administrator's cause or contribute finding can be found in Section V
of these Findings, and the detailed greenhouse gas emissions data for
section 202(a) source categories can be found in Appendix B of EPA's
TSD.
2. Joint EPA and Department of Transportation Proposed Greenhouse Gas
Rule
On September 15, 2009, EPA and the Department of Transportation's
National Highway Safety Administration (NHTSA) proposed a National
Program that would dramatically reduce greenhouse gas emissions and
improve fuel economy for new cars and trucks sold in the United States.
The combined EPA and NHTSA standards that make up this proposed
National Program would apply to passenger cars, light-duty trucks, and
medium-duty passenger vehicles, covering model years 2012 through 2016.
They proposed to require these vehicles to meet an estimated combined
average

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emissions level of 250 grams of carbon dioxide per mile, equivalent to
35.5 miles per gallon (MPG) if the automobile industry were to meet
this carbon dioxide level solely through fuel economy improvements.
Together, these proposed standards would cut carbon dioxide emissions
by an estimated 950 million metric tons and 1.8 billion barrels of oil
over the lifetime of the vehicles sold under the program (model years
2012-2016). The proposed rulemaking can be viewed at (74 FR 49454,
September 28, 2009).

C. Public Involvement

In response to the Supreme Court's decision, EPA has been examining
the scientific and technical basis for the endangerment and cause or
contribute decisions under CAA section 202(a) since 2007. The science
informing the decision-making process has grown stronger since our work
began. EPA's approach to evaluating the science, including comments
submitted during the public comment period, is further discussed in
Section III.A of these Findings. Public review and comment has always
been a major component of EPA's process.
1. EPA's Initial Work on Endangerment
As part of the Advance Notice of Proposed Rulemaking: Regulating
Greenhouse Gas Emissions under the Clean Air Act (73 FR 44353)
published in July 2008, EPA provided a thorough discussion of the
issues and options pertaining to endangerment and cause or contribute
findings under the CAA. The Agency also issued a TSD providing an
overview of all the major scientific assessments available at the time
and emission inventory data relevant to the contribution finding
(Docket ID No. EPA-HQ-OAR-2008-0318). The comment period for that
Advance Notice was 120 days, and it provided an opportunity for EPA to
hear from the public with regard to the issues involved in endangerment
and cause or contribute findings as well as the supporting science. EPA
received, reviewed and considered numerous comments at that time and
this public input was reflected in the Findings that the Administrator
proposed in April 2009. In addition, many comments were received on the
TSD released with the Advance Notice and reflected in revisions to the
TSD released in April 2009 to accompany the Administrator's proposal.
All public comments on the Advance Notice are contained in the public
docket for this action (Docket ID No. EPA-HQ-OAR-2008-0318) accessible
through www.regulations.gov.
2. Public Involvement Since the April 2009 Proposed Endangerment
Finding
The Proposed Endangerment and Cause or Contribute Findings for
Greenhouse Gases (Proposed Findings) was published on April 24, 2009
(74 FR 18886). The Administrator's proposal was subject to a 60-day
public comment period, which ended June 23, 2009, and also included two
public hearings. Over 380,000 public comments were received on the
Administrator's proposed endangerment and cause or contribute findings,
including comments on the elements of the Administrator's April 2009
proposal, the legal issues pertaining to the Administrator's decisions,
and the underlying TSD containing the scientific and technical
information.
A majority of the comments (approximately 370,000) were the result
of mass mail campaigns, which are defined as groups of comments that
are identical or very similar in form and content. Overall, about two-
thirds of the mass-mail comments received are supportive of the
Findings and generally encouraged the Administrator both to make a
positive endangerment determination and implement greenhouse gas
emission regulations. Of the mass mail campaigns in disagreement with
the Proposed Findings most either oppose the proposal on economic
grounds (e.g., due to concern for regulatory measures following an
endangerment finding) or take issue with the proposed finding that
atmospheric greenhouse gas concentrations endanger public health and
welfare. Please note that for mass mailer campaigns, a representative
copy of the comment is posted in the public docket for this Action
(Docket ID No. EPA-HQ-OAR-2009-0171) at www.regulations.gov.
Approximately 11,000 other public comments were received. These
comments raised a variety of issues related to the scientific and
technical information EPA relied upon in making the Proposed Findings,
legal and procedural issues, the content of the Proposed Findings, and
the implications of the Proposed Findings.
In light of the very large number of comments received and the
significant overlap between many comments, EPA has not responded to
each comment individually. Rather, EPA has summarized and provided
responses to each significant argument, assertion and question
contained within the totality of the comments. EPA's responses to some
of the most significant comments are provided in these Findings.
Responses to all significant issues raised by the comments are
contained in the 11 volumes of the Response to Comments document,
organized by subject area (found in docket EPA-HQ-OAR-2009-0171).
3. Issues Raised Regarding the Rulemaking Process
EPA received numerous comments on process-related issues, including
comments urging the Administrator to delay issuing the final findings,
arguing that it was improper for the Administrator to sever the
endangerment and cause or contribute findings from the attendant
section 202(a) standards, arguing the final decision was preordained by
the President's May vehicle announcement, and questioning the adequacy
of the comment period. Summaries of key comments and EPA's responses
are discussed in this section. Additional and more detailed responses
can be found in the Response to Comments document, Volume 11. As noted
in the Response to Comments document, EPA also received comments
supporting the overall process.
a. It Is Reasonable for the Administrator To Issue the Endangerment and
Cause or Contribute Findings Now
Though the Supreme Court did not establish a specific deadline for
EPA to act, more than two and a half years have passed since the remand
from the Supreme Court, and it has been 10 years since EPA received the
original petition requesting that EPA regulate greenhouse gas emissions
from new motor vehicles. EPA has a responsibility to respond to the
Supreme Court's decision and to fulfill its obligations under current
law, and there is good reason to act now given the urgency of the
threat of climate change and the compelling scientific evidence.
Many commenters urge EPA to delay making final findings for a
variety of reasons. They note that the Supreme Court did not establish
a deadline for EPA to act on remand. Commenters also argue that the
Supreme Court's decision does not require that EPA make a final
endangerment finding, and thus that EPA has discretionary power and may
decline to issue an endangerment finding, not only if the science is
too uncertain, but also if EPA can provide ``some reasonable
explanation'' for exercising its discretion. These commenters interpret
the Supreme Court decision not as rejecting all policy reasons for
declining to undertake an endangerment finding, but rather as
dismissing solely the policy reasons EPA set forth in 2003. Some
commenters cite language in the

[[Page 66501]]

Supreme Court decision regarding EPA's discretion regarding ``the
manner, timing, content, and coordination of its regulations,'' and the
Court's declining to rule on ``whether policy concerns can inform
EPA\'\s actions in the event that it makes'' a CAA section 202(a)
finding to support their position.
Commenters then suggest a variety of policy reasons that EPA can
and should make to support a decision not to undertake a finding of
endangerment under CAA section 202(a)(1). For example, they argue that
a finding of endangerment would trigger several other regulatory
programs--such as the Prevention of Significant Deterioration (PSD)
provisions--that would impose an unreasonable burden on the economy and
government, without providing a benefit to the environment. Some
commenters contend that EPA should defer issuing a final endangerment
finding while Congress considers legislation. Many commenters note the
ongoing international discussions regarding climate change and state
their belief that unilateral EPA action would interfere with those
negotiations. Others suggest deferring the EPA portion of the joint
U.S. Department of Transportation (DOT)/EPA rulemaking because they
argue that the new Corporate Average Fuel Economy (CAFE) standards will
effectively result in lower greenhouse gas emissions from new motor
vehicles, while avoiding the inevitable problems and concerns of
regulating greenhouse gases under the CAA.
Other commenters argue that the endangerment determination has to
be made on the basis of scientific considerations only. These
commenters state that the Court was clear that ``[t]he statutory
question is whether sufficient information exists to make an
endangerment finding,'' and thus, only if ``the scientific uncertainty
is so profound that it precludes EPA from making a reasoned judgment as
to whether greenhouse gases contribute to global warming,'' may EPA
avoid making a positive or negative endangerment finding. Many
commenters urge EPA to take action quickly. They note that it has been
10 years since the original petition requesting that EPA regulate
greenhouse gas emissions from motor vehicles was submitted to EPA. They
argue that climate change is a serious problem that requires immediate
action.
EPA agrees with the commenters who argue that the Supreme Court
decision held that EPA is limited to consideration of science when
undertaking an endangerment finding, and that we cannot delay issuing a
finding due to policy concerns if the science is sufficiently certain
(as it is here). The Supreme Court stated that ``EPA can avoid taking
further action only if it determines that greenhouse gases do not
contribute to climate change or if it provides some reasonable
explanation as to why it cannot or will not exercise its discretion to
determine whether they do'' 549 U.S. at 533. Some commenters point to
this last provision, arguing that the policy reasons they provide are a
``reasonable explanation'' for not moving forward at this time.
However, this ignores other language in the decision that clearly
indicates that the Court interprets the statute to allow for the
consideration only of science. For example, in rejecting the policy
concerns expressed by EPA in its 2003 denial of the rulemaking
petition, the Court noted that ``it is evident [the policy
considerations] have nothing to do with whether greenhouse gas
emissions contribute to climate change. Still less do they amount to a
reasoned justification for declining to form a scientific judgment''
Id. at 533-34 (emphasis added).
Moreover, the Court also held that ``[t]he statutory question is
whether sufficient information exists to make an endangerment finding''
Id. at 534. Taken as a whole, the Supreme Court's decision clearly
indicates that policy reasons do not justify the Administrator avoiding
taking further action on the question here.
We also note that the language many commenters quoted from the
Supreme Court decision about EPA's discretion regarding the manner,
timing and content of Agency actions, and the ability to consider
policy concerns, relate to the motor vehicle standards required in the
event that EPA makes a positive endangerment finding, and not the
finding itself. EPA has long taken the position that it does have such
discretion in the standard-setting step under CAA section 202(a).
b. The Administrator Reasonably Proceeded With the Endangerment and
Cause or Contribute Findings Separate From the CAA Section 202(a)
Standard Rulemaking
As discussed in the Proposed Findings, typically endangerment and
cause or contribute findings have been proposed concurrently with
proposed standards under various sections of the CAA, including CAA
section 202(a). EPA received numerous comments on its decision to
propose the endangerment and cause or contribute findings separate from
any standards under CAA section 202(a).
Commenters argue that EPA has no authority to issue an endangerment
determination under CAA section 202(a) separate and apart from the
rulemaking to establish emissions standards under CAA section 202(a).
According to these commenters, CAA section 202(a) provides only one
reason to issue an endangerment determination, and that is as the basis
for promulgating emissions standards for new motor vehicles; thus, it
does not authorize such a stand-alone endangerment finding, and EPA may
not create its own procedural rules completely divorced from the
statutory text. They continue by stating that while CAA section 202(a)
says EPA may issue emissions standards conditioned on such a finding,
it does not say EPA may first issue an endangerment determination and
then issue emissions standards. In addition, they contend, the
endangerment proposal and the emissions standards proposal need to be
issued together so commenters can fully understand the implications of
the endangerment determination. Failure to do so, they argue, deprives
the commenters of the opportunity to assess the regulations that will
presumably follow from an endangerment finding. They also argue that
the expected overlap between reductions in emissions of greenhouse
gases from CAA section 202(a) standards issued by EPA and CAFE
standards issued by DOT calls into question the basis for the CAA
section 202(a) standards and the related endangerment finding, and that
EPA is improperly motivated by an attempt to trigger a cascade of
regulations under the CAA and/or to promote legislation by Congress.
EPA disagrees with the commenters' claims and arguments. The text
of CAA section 202(a) is silent on this issue. It does not specify the
timing of an endangerment finding, other than to be clear that
emissions standards may not be issued unless such a determination has
been made. EPA is exercising the procedural discretion that is provided
by CAA section 202(a)'s lack of specific direction. The text of CAA
section 202(a) envisions two separate actions by the Administrator: (1)
A determination on whether emissions from classes or categories of new
motor vehicles cause or contribute to air pollution that may reasonably
be anticipated to endanger, and (2) a separate decision on issuance of
appropriate emissions standards for such classes or categories. The
procedure followed in this rulemaking, and the companion rulemaking
involving emissions standards for light duty motor vehicles, is
consistent with CAA section 202(a). EPA will issue final emissions
standards for new motor

[[Page 66502]]

vehicles only if affirmative findings are made concerning contribution
and endangerment, and such emissions standards will not be finalized
prior to making any such determinations. While it would also be
consistent with CAA section 202(a) to issue the greenhouse gas
endangerment and contribution findings and emissions standards for new
light-duty vehicles in the same rulemaking, e.g., a single proposal
covering them and a single final rule covering them, nothing in CAA
section 202(a) requires such a procedural approach, and nothing in the
approach taken in this case violates the text of CAA section 202(a).
Since Congress was silent on this issue, and more than one procedural
approach may accomplish the requirements of CAA section 202(a), EPA has
the discretion to use the approach considered appropriate in this case.
Once the final affirmative contribution and endangerment findings are
made, EPA has the authority to issue the final emissions standards for
new light-duty motor vehicles; however, as the Supreme Court has noted,
the agency has `significant latitude as to the manner, timing, [and]
content * * * of its regulations . * * *' Massachusetts v. EPA, 549
U.S. at 533. That includes the discretion to issue them in a separate
rulemaking.
Commenters' argument would also lead to the conclusion that EPA
could not make an endangerment finding for the entire category of new
motor vehicles, as it is doing here, unless EPA also conducted a
rulemaking that set emissions standards for all the classes and
categories of new motor vehicles at the same time. This narrow
procedural limitation would improperly remove discretion that CAA
section 202(a) provides to EPA.
EPA has the discretion under CAA section 202(a) to consider classes
or categories of new motor vehicles separately or together in making a
contribution and endangerment determination. This discretion would be
removed under commenters' interpretation, by limiting this to only
those cases in which EPA was also ready to issue emissions standards
for all of the classes or categories covered by the endangerment
finding. However, nothing in the text of CAA section 202(a) places such
a limit on EPA's discretion in determining how to group classes or
categories of new motor vehicles for purposes of the contribution and
endangerment findings. This limitation would not be appropriate,
because the issues of contribution and endangerment are separate and
distinct from the issues of setting emissions standards. EPA, in this
case, is fully prepared to go forward with the contribution and
endangerment determination, while it is not ready to proceed with
rulemaking for each and every category of new motor vehicles in the
first rulemaking to set emissions standards. Section 202(a) of the CAA
provides EPA discretion with regard to when and how it conducts its
rulemakings to make contribution and endangerment findings, and to set
emissions standards, and the text of CAA section 202(a) does not
support commenters attempt to limit such discretion.
Concerns have been raised that the failure to issue the proposed
endangerment finding and the proposed emissions standard together
preclude commenters from assessing and considering the implications of
the endangerment finding and the regulations that would likely flow
from such a finding. However, commenters have failed to explain how
this interferes in any way with their ability to comment on the
endangerment finding. In fact it does not interfere, because the two
proposals address separate and distinct issues. The endangerment
finding concerns the contribution of new motor vehicles to air
pollution and the effect of that air pollution on public health or
welfare. The emissions standards, which have been proposed (74 FR
49454, September 28, 2009), concern the appropriate regulatory
emissions standards if affirmative findings are made on contribution
and endangerment. These two proposals address different issues. While
commenters have the opportunity to comment on the proposed emissions
standards in that rulemaking, they have not shown, and cannot show,
that they need to have the emissions standards proposal before them in
order to provide relevant comments on the proposed contribution or
endangerment findings. Further discussion of this issue can be found in
Section II of these Findings, and discussion of the timing of this
action and its relationship to other CAA provisions and Congressional
action can be found in Section III of these Findings and Volume 11 of
the Response to Comments document.
c. The Administrator's Final Decision Was Not Preordained by the
President's May Vehicle Announcement
EPA received numerous comments arguing that the President's
announcement of a new ``National Fuel Efficiency Policy'' on May 19,
2009 seriously undermines EPA's ability to provide objective
consideration of and a legally adequate response to comments objecting
to the previously proposed endangerment findings.
Commenters' conclusion is based on the view that the President's
announced policy requires EPA to promulgate greenhouse gas emissions
standards under CAA section 202(a), that the President's and
Administrator Jackson's announcement indicated that the endangerment
rulemaking was but a formality and that a final endangerment finding
was a fait accompli. Commenters argue that this means the result of
this rulemaking has been preordained and the merits of the issues have
been prejudged.
EPA disagrees. Commenters' arguments wholly exaggerate and
mischaracterize the circumstances. In the April 24, 2009 endangerment
proposal EPA was clear that the two steps in the endangerment provision
have to be satisfied in order for EPA to issue emissions standards for
new motor vehicles under CAA section 202(a) (74 FR at 18888, April 24,
2009). This was repeated when EPA issued the Notice of Upcoming Joint
Rulemaking to Establish Vehicle GHG Emissions and CAFE Standards (74 FR
24007 May 22, 2009) (Notice of Intent or NOI). This was repeated again
when EPA issued proposed greenhouse gas emissions standards for certain
new motor vehicles (74 FR 49454, September 28, 2009). EPA has
consistently made it clear that issuance of new motor vehicle standards
requires and is contingent upon satisfaction of the two-part
endangerment test.
On May 19, 2009 EPA issued the joint Notice of Intent, which
indicated EPA's intention to propose new motor vehicle standards. All
of the major motor vehicle manufacturers, their trade associations, the
State of California, and several environmental organizations announced
their full support for the upcoming rulemaking. Not surprisingly, on
the same day the President also announced his full support for this
action. Commenters, however, erroneously equate this Presidential
support with a Presidential directive that requires EPA to prejudge and
preordain the result of this rulemaking.
The only evidence they point to are simply indications of
Presidential support. Commenters point to a press release, which
unsurprisingly refers to the Agency's announcement as delivering on the
President's commitment to enact more stringent fuel economy standards,
by bringing ``all stakeholders to the table and [coming] up with a
plan'' for solving a serious problem. The plan that was announced, of
course, was a plan to conduct notice and comment

[[Page 66503]]

rulemaking. The press release itself states that President Obama ``set
in motion a new national policy,'' with the policy ``aimed'' at
reducing greenhouse gas emissions for new cars and trucks. What was
``set in motion'' was a notice and comment rulemaking described in the
NOI issued by EPA on the same day. Neither the President nor EPA
announced a final rule or a final direction that day, but instead did
no more than announce a plan to go forward with a notice and comment
rulemaking. That is how the plan ``delivers on the President's
commitment'' to enact more stringent standards. The announcement was
that a notice and comment rulemaking would be initiated with the aim of
adopting certain emissions standards.
That is no different from what EPA or any other agency states when
it issues a notice of proposed rulemaking. It starts a process that has
the aim of issuing final regulations if they are deemed appropriate at
the end of the public process. The fact that an Agency proposes a
certain result, and expects that a final rule will be the result of
setting such a process in motion, is the ordinary course of affairs in
notice and comment rulemakings. This does not translate into prejudging
the final result or having a preordained result that de facto negates
the public comment process. The President's press release of May 19,
2009 was a recognition that this notice and comment rulemaking process
would be set in motion, as well as providing his full support for the
Agency to go forward in this direction; it was no more than that.
The various stakeholders who announced their support for the plan
that had been set in motion all recognized that full notice and comment
rulemaking was part of the plan, and they all reserved their rights to
participate in such notice and comment rulemaking. For example, see the
letter of support from Ford Motor Company, which states that ``Ford
fully supports proposal and adoption of such a National Program, which
we understand will be subject to full notice-and-comment rulemaking,
affording all interested parties including Ford the right to
participate fully, comment, and submit information, the results of
which are not pre-determined but depend upon processes set by law.''
d. The Notice and Comment Period Was Adequate
Many commenters argue that the 60-day comment period was
inadequate. Commenters claim that a 60-day period was insufficient time
to fully evaluate the science and other information that informed the
Administrator's proposal. Some commenters assert that because the
comment period for the Proposed Finding substantially overlapped with
the comment period for the Mandatory Greenhouse Gas Reporting Rule, as
well as Congress' consideration of climate legislation, their ability
to fully participate in the notice and comment period was ``seriously
compromised.'' Moreover, they continue, because EPA had not yet
proposed CAA section 202(a) standards, there was no valid reason to
fail to extend the comment period. Several commenters and other
entities had also requested that EPA extend the comment period.
Some commenters assert that the notice provided by this rulemaking
was ``defective'' because the Federal Register notice announcing the
proposal had an error in the e-mail address for the docket. At least
one commenter suggests that this error deprives potential commenters of
their Due Process under the Fifth Amendment of the Constitution, citing
Armstrong v. Manzo, 380 U.S. 545, 552 (1965), and that failure to
``correct'' the minor typographical error in the e-mail address and
extend the comment period would make the rule ``subject to reversal''
in violation of the CAA, Administrative Procedure Act (APA), the Due
Process clause of the Constitution, and EO 12866.
Finally, for many of the same reasons that commenters argue a 60-
day comment period was inadequate, several commenters request that EPA
reopen and/or extend the comment period. One commenter requests that
the comment period be reopened because there was new information
regarding data used by EPA in the Proposed Findings. In particular, the
commenter alleges that it recently became aware that one of the sources
of global climate data had destroyed the raw data for its data set of
global surface temperatures. The commenter argues that this alleged
destruction of raw data violates scientific standards, calls into
question EPA's reliance on that data in these Findings, and
necessitates a reopening of the proceedings. Other commenters request
that the comment period be extended and/or reopened due to the release
of a Federal government document on the impact of climate change in the
United States near the end of the comment period, as well as the
release of an internal EPA staff document discussing the science.
The official public comment period on the proposed rule was
adequate. First, a 60-day comment period satisfies the procedural
requirements of CAA section 307 of the CAA, which requires a 30-day
comment period, and that the docket be kept open to receive rebuttal or
supplemental information as follow-up to any hearings for 30 days
following the hearings. EPA met those obligations here--the comment
period opened on April 24, 2009, the last hearing was on May 21, 2009
and the comment period closed June 23, 2009.
Second, as explained in letters denying requests to extend the
comment period, a very large part of the information and analyses for
the Proposed Findings had been previously released in July 30, 2008, as
part of the Advance Notice of Proposed Rulemaking: Regulating
Greenhouse Gas Emissions under the Clean Air Act (ANPR) (73 FR 44353).
The public comment period for the ANPR is discussed above in Section
I.C.1 of these Findings. The Administrator explained that the comment
period for that ANPR was 120 days and that the major recent scientific
assessments that EPA relied upon in the TSD released with the ANPR had
previously each gone through their own public review processes and have
been publicly available for some time. In other words, EPA has provided
ample time for review, particularly with regard to the technical
support for the Findings. See, for example, EPA Letter to Congressman
Issa dated June 17, 2009, a copy of which is available at https://epa.gov/climatechange/endangerment.html.
Moreover, the comment period was not rendered insufficient merely
because other climate-related proceedings were occurring
simultaneously.
While one commenter suggests that the convergence of several
different climate-related activities has ``seriously compromised''
their ability to participate in the comment process, that commenter was
able to submit an 89 page comment on this proposal alone. Moreover, it
is hardly rare that more than one rule is out for comment at the same
time. As noted above, EPA has received a substantial number of
significant comments on the Proposed Findings, and has thoroughly
considered and responded to significant comments.
EPA finds no evidence that a typographical error in the docket e-
mail address of the Federal Register notice announcing the proposal
prevented the public from having a meaningful opportunity to comment,
and therefore deprived them of due process. Although the minor error--
which involved a word processing auto-correction that turned a short
dash into a long dash--appeared in the FR version of the Proposed
Findings, the e-mail address is correct

[[Page 66504]]

in the signature version of the Proposed Findings posted on EPA's Web
site until publication in the Federal Register, and in the
``Instructions for Submitting Written Comments'' document on the Web
site for the rulemaking. EPA has received over 190,000 e-mails to the
docket e-mail address to date, so the minor typographical error
appearing in only one location has not been an impediment to interested
parties' e-mailing comments. Moreover, EPA provided many other avenues
for interested parties to submit comments in addition to the docket e-
mail address, including via www.regulations.gov, mail, and fax; each of
these options have been utilized by many commenters. EPA is confident
that the minor typographical error did not prevent anyone from
submitting written comments, by e-mail or otherwise, and that the
public was provided ``meaningful participation in the regulatory
process'' as mentioned in EO 12866.
Our response regarding the request to reopen the comment period due
to concerns about alleged destruction of raw global surface data is
discussed more fully in the Response to Comments document, Volume 11.
The commenter did not provide any compelling reason to conclude that
the absence of these data would materially affect the trends in the
temperature records or conclusions drawn about them in the assessment
literature and reflected in the TSD. The Hadley Centre/Climate Research
Unit (CRU) temperature record (referred to as HadCRUT) is just one of
three global surface temperature records that EPA and the assessment
literature refer to and cite. National Oceanic and Atmospheric
Administration (NOAA) and National Aeronautics and Space Administration
(NASA) also produce temperature records, and all three temperature
records have been extensively peer reviewed. Analyses of the three
global temperature records produce essentially the same long-term
trends as noted in the Climate Change Science Program (CCSP) (2006)
report ``Temperature Trends in the Lower Atmosphere,'' IPCC (2007), and
NOAA's study \5\ ``State of the Climate in 2008''. Furthermore, the
commenter did not demonstrate that the allegedly destroyed data would
materially alter the HadCRUT record or meaningfully hinder its
replication. The raw data, a small part of which has not been public
(for reasons described at: https://www.uea.ac.uk/mac/comm/media/press/2009/nov/CRUupdate), are available in a quality-controlled (or
homogenized, value-added) format and the methodology for developing the
quality-controlled data is described in the peer reviewed literature
(as documented at https://www.cru.uea.ac.uk/cru/data/temperature/).
---------------------------------------------------------------------------

\5\ Peterson, T.C., and M.O. Baringer (Eds.) (2009) State of the
Climate in 2008. Bull. Amer. Meteor. Soc., 90, S1-S196.
---------------------------------------------------------------------------

The release of the U.S. Global Climate Research Program (USGCRP)
report on impacts of climate change in the United States in June 2009
also did not necessitate extending the comment period. This report was
issued by the USGCRP, formerly the Climate Change Science Program
(CCSP), and synthesized information contained in prior CCSP reports and
other synthesis reports, many of which had already been published (and
were included in the TSD for the Proposed Findings). Further, the
USGCRP report itself underwent notice and comment before it was
finalized and released.
Regarding the internal EPA staff paper that came to light during
the comment

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