This post also appears on the National Journal Energy & Environment Experts Blog.

With Thursday’s floor statement by Senator Murkowski (R-Alaska) announcing her joint resolution to override EPA’s endangerment finding, we were introduced to a new term to add to our lexicon – a disapproval resolution.  If like me, you only had a vague recollection that Congress had given itself the ability to override any new federal regulation, some quick research was in order.

The recent announcement by EPA, declaring that greenhouse gases are a danger to public health and welfare, should not come as a surprise to anyone.  EPA has made it clear that it would respond to what the science demanded and to what the Supreme Court (Mass v. EPA) mandated.

What have the courts figured out that Congress hasn’t yet gotten its arms around?

In a potentially far reaching decision by the United States Court of Appeals for the Second Circuit, the federal courts have once again stepped into the breach and ruled that states and private landowners can sue the five largest electric utilities for climate-related damages they contend were caused by the utilities’ carbon dioxide pollution  (Connecticut v. American Electric Power Corp. et al. 2nd Circuit 2009). The appeals court overturned a district court opinion that dismissed the case on the basis that it presented a “political question” that should be decided by another branch of government (Congress or the Executive Branch).  The Appeals Court held that until Congressional or regulatory action occurred, common law protections against damage from greenhouse gas pollution are a legitimate basis for a court suit.  The case was sent back to the District Court for further proceedings. 

Together with the landmark 2007 Supreme Court decision (Mass. v EPA), that has set EPA down the path of regulating greenhouse gas emissions, these court cases underscore a growing recognition by federal courts that the threat of greenhouse gas emissions represent a genuine threat and warrant legal review.

From a practical standpoint, this case cranks up the pressure on both Congress and EPA to act.  Case-by case litigation would be disruptive, expensive and problematic given the scope of the challenges we face.  The Court’s decision recognizes that these common law public nuisance cases may be preempted by Congressional or executive branch action.  It should be increasingly clear to all that the best way forward would be for Congress to pass comprehensive climate legislation.

EPA has proposed what many are calling the Agency’s first major step down the road to regulating greenhouse gas emissions from stationary sources. The newly proposed “tailoring” rule applies to requirements for major new or expanded sources and to permits for stationary sources, but does so in a carefully targeted manner.  It’s the right place for EPA to start.

It’s critical to understand both what the proposal does and doesn’t do, and why EPA needed to begin here.

Contrary to some press accounts, the proposed rule does not impose new control requirements on all large stationary sources.  Best available control technologies would be required only of new stationary sources that emit over 25,000 tons per year or major modifications to existing sources that increase emissions by 10,000-25,000 tons per year – a range EPA sought comment on. If yours is not one of the estimated 400 major new or modified facilities each year, you do not face any (new or old) control requirements limiting greenhouse gas emissions.

The proposal also requires that EPA (and states) include greenhouse gas emissions in the permits of roughly 14,000 facilities that emit more than 25,000 tons per year of these pollutants. These permits do not impose any new controls on any source; they simply incorporate into a permit EPA’s new mandatory reporting requirements.