June 10, 2009
Environmental Protection Agency
EPA Docket Center, Mailcode 6102T
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
Request for Extension of Comment Period
Proposed Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act
We respectfully request the Environmental Protection Agency (EPA) extend, by 60 days, the comment period on EPA’s Proposed Endangerment and Cause and Contribute Findings for Greenhouse Gases under the Clean Air Act (“Proposed Endangerment Findings”).
As you are aware, Members of Congress have expressed grave concern that an affirmative endangerment finding for carbon dioxide and other greenhouse gases would place thousands of American small businesses, already struggling in one of the toughest economic climates our generation has ever seen, in a legally uncertain position, further threatening their survival in this economy. What's more, these same businesses are currently responding to several other rules proposed by your agency, including a Proposed Rule on Mandatory Reporting of Greenhouse Gases, EPA’s proposed revisions to the National Renewable Fuel Standard Program and responding to the recently released H.R. 2454, American Clean Energy and Security Act, introduced by Representatives Waxman and Markey. We are concerned that given the relationship between these climate change proposals and the cumulative demands they impose, EPA’s June 23, 2009 deadline does not allow stakeholders adequate time.
It is true that the Proposed Endangerment Findings do not, in isolation, establish any regulatory requirements. However, this fact is immaterial as such findings are a clear predicate for any standard-setting rulemaking for greenhouse gases. The recently announced Notice of Upcoming Joint Rulemaking to Establish Vehicle GHG Emissions and CAFE Standards, relying in part on authority from Section 202 of the Clean Air Act, reveal the Administration’s intention to regulate under authority from the CAA immediately following the finalization of the Proposed Endangerment Findings.
As you are aware, once a pollutant is “subject to regulation under the act,” a regulatory dragnet is triggered, subjecting thousands of businesses, large and small, to onerous Prevention of Significant Deterioration (PSD) and Title V permitting requirements. Such a decision could have immediate effects, impeding the construction and permitting of new energy projects. Nothing in the CAA limits the application of permitting requirements to energy sources, so it could be applied to thousands of small businesses, farms, churches, and schools, subjecting the owners to unknown civil liabilities if they fail to obtain necessary permits. Clearly, EPA’s final decision on the Proposed Endangerment Findings will have great consequence to the U.S. economy and to businesses struggling to survive these harsh economic times.
For a rule of this magnitude, 60 days is simply inadequate.
As you are aware, it is clearly within EPA’s discretion to extend the comment period. The Supreme Court in Massachusetts v. EPA made clear that EPA has discretion in the timing of its issuance of any regulations. Moreover, the D.C. Circuit has also stated that nothing in the Supreme Court’s decision “imposes a specific deadline by which EPA must determine whether a particular air pollutant poses a threat to public health or welfare.” Accordingly, we foresee no legal obstacles to EPA’s granting of this request.
Given these concerns, we respectfully request EPA provide a 60-day extension so that interested parties have adequate time to respond to the Proposed Endangerment Findings. If you choose to not grant this request, we expect that your staff will provide our offices with a detailed explanation justifying the decision. Please contact Senior Counsel Kristina Moore, with Oversight and Government Reform Committee, if you have any questions.
F. James Sensenbrenner, Jr.
Select Committee on Energy Independence and Global Warming
Darrel E. Issa
Committee on Oversight and Government Reform
Committee on Energy and Commerce
Committee on Transportation and Infrastructure
Committee on Science and Technology
Committee on Natural Resources
Committee on Appropriations
Committee on the Budget
Committee on Agriculture
Energy and Environment Subcommittee
Committee on Energy and Commerce
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