Marten Law: EPA's Endangerment Finding Could Spur More NEPA, Nuisance Litigation

In this Emerging Issues analysis, Steven Jones of the Martin Law Group discusses the EPA's finding that greenhouse gases pose a danger to people and their environment. He states that this finding may lead to new regulations under the Clean Air Act. Jones talks about the actual Endangerment Finding of the EPA, the consequences of this finding and the likelihood of more litigation. He writes:
"The Environmental Protection Agency (EPA) issued its final Endangerment Finding under Section 202(a) of the Clean Air Act on December 7, 2009. The Finding is EPA's determination that greenhouse gases (GHGs) pose a danger to human health and the environment, and it could pave the way for regulation of carbon dioxide (CO2) and other greenhouse gas emissions from vehicles, power plants, factories refineries and other major sources under the Clean Air Act."
"EPA's announcement coincided with the opening of the UN Climate Conference in Copenhagen and signaled that the U.S. is moving to address climate change, with or without Congress. Litigation is almost certain to ensue."
"While the scope of any Congressional legislation and new regulations issued by EPA remains in doubt, one thing is certain—the Endangerment Finding has just added a new weapon to the arsenal already held by plaintiffs and environmental groups opposing projects and a new basis for damage claims. Irrespective of whether Congress acts, and regardless of the scope of any pre-emptive reach of legislation, it is likely that the Finding will provide fodder for any project opponent wishing to challenge a project under the National Environmental Policy Act (NEPA) and its state-law equivalents, or under the Endangered Species Act (ESA) or the Clean Air Act itself."
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