2022-08925. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Action on Petitions

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of final action denying petitions.

SUMMARY:

The Environmental Protection Agency (EPA) received four petitions for reconsideration, rulemaking, or reopening of the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act (CAA), published in the Federal Register on December 15, 2009. The agency is providing notification of its action denying all four petitions. The basis for EPA's action is set out fully in the accompanying decision document, available in the docket for this action.

DATES:

Effective April 29, 2022.

FOR FURTHER INFORMATION CONTACT:

Mr. Jeremy Martinich, Environmental Protection Agency, Office of Air and Radiation, Office of Atmospheric Programs, Climate Change Division, [phone], [e-mail]. For additional information regarding this Notice, please go to the website https://www.epa.gov/​climate-change/​endangerment-and-cause-or-contribute-findings-greenhouse-gases-under-section-202a.

SUPPLEMENTARY INFORMATION:

I. How can I get copies of this document and other related information?

A copy of this Federal Register document, the petitions,^[1] the letters denying the four petitions and the decision document ^[2] describing the full basis for the denial of these petitions, and other materials related to this action are available in the docket for this action (Docket ID No. EPA-HQ-OAR-2022-0129). Publicly available docket materials are available electronically through www.regulations.gov. In addition, following signature, an electronic copy of this final action and the decision document will be available on the internet at https://www.epa.gov/​climate-change/​2022-denial-petitions-reconsideration-rulemaking-or-reopening-endangerment-and-cause. Due to the ongoing COVID-19 pandemic, public access to the EPA Docket Center and Reading Room may be limited: Please check the website at https://www.epa.gov/​dockets for the most up to date information on operating status. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to obtain docket information via https://www.regulations.gov/​. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/​dockets.

II. Judicial Review

The decision to deny the four petitions is a final agency action for purposes of section 307(b)(1) of the CAA, which governs judicial review of final actions by the EPA. This action is not a rulemaking and is not subject to the various statutory and other provisions applicable to a rulemaking.

Section 307(b)(1) provides, in part, that petitions for review must be filed in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit): (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the EPA complete discretion whether to invoke the exception in (ii).

This final action is “nationally applicable” within the meaning of CAA section 307(b)(1). In the alternative, to the extent a court finds this final action to be locally or regionally applicable, the Administrator is exercising the complete discretion afforded to him under the CAA to make and publish a finding that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1).^[3] This action relates to the 2009 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act (“2009 Endangerment Finding”), which are nationally applicable, 74 FR 66496 (December 15, 2009). The 2009 Endangerment Finding concerns risks from greenhouse gas pollution and contributions to such pollution that occur across the nation, and the result of the denial of these four petitions is that the existing nationally applicable 2009 Endangerment Finding remains in place and undisturbed. Further, both the 2009 Endangerment Finding and EPA's previous denial of petitions for reconsideration of that Finding were previously reviewed by the D.C. Circuit, see Coal. for Responsible Regul., Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (per curiam) (subsequent history omitted). Moreover, the 2009 Endangerment Finding triggered EPA's statutory duty to promulgate motor vehicle standards under section 202(a) of the CAA, for which judicial review is also only available in the D.C. Circuit and which have effects in more than one federal judicial circuit.^[4] For these reasons, this final action is nationally applicable or, alternatively, the Administrator is exercising the complete discretion afforded to him by the CAA and hereby finds that this final action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1) and is hereby publishing that finding in the Federal Register .

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days from the date this final action is published in the Federal Register .

Michael S. Regan,

Administrator.

Footnotes

1.  The four petitions are styled respectively as: Petition for Reconsideration of “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(A) of the Clean Air Act,” submitted on behalf of the Concerned Household Electricity Consumers Council (CHECC); Petition for Rulemaking on the Issue of Greenhouse Gases and Public Health and Welfare, submitted on behalf of the Competitive Enterprise Institute, the Science and Environmental Policy Project, and four individual members of the latter's Board of Directors (CEI); Petition to Reopen and Reconsider “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act,” filed by the FAIR Energy Foundation (FAIR); and Petition to Reconsider Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act, 74 FR. 66496 (December 15, 2009) Docket No. EPA-HQ-OAR-2009-0171; FRL-9091-8; RIN 2060-ZA14 (“Endangerment Finding”) submitted by the Texas Public Policy Foundation on behalf of Liberty Packing Company LLC, Nuckles Oil Co., Inc. dba Merit Oil Company, Norman R. “Skip” Brown, Dalton Trucking Company, Inc., Loggers Association of Northern California, Construction Industry Air Quality Coalition, and Robinson Industries, Inc (TPP).

2.   See “EPA's Denial of Petitions Relating to the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.”

3.  In deciding whether to invoke the exception by making and publishing a finding that this final action is based on a determination of nationwide scope or effect, the Administrator has also taken into account a number of policy considerations, including his judgment balancing the benefit of obtaining the D.C. Circuit's authoritative centralized review versus allowing development of the issue in other contexts and the best use of Agency resources.

4.  In the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that the “nationwide scope or effect” exception applies would be appropriate for any action that has a scope or effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.