RE Notice of Intent to File Suit Under Clean by lru16485


									July 31, 2008

Honorable Stephen Johnson, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460


RE: Notice of Intent to File Suit Under Clean Air Act Section 304 with Respect to
Petition for Rule Making Seeking the Regulation of Greenhouse Gas Emissions
from Nonroad Vehicles and Engines

Dear Administrator Johnson:

        On January 29, 2008, the International Center for Technology Assessment, Center for Food
Safety, and Friends of the Earth (“petitioners”) submitted a formal petition pursuant to the Clean Air
Act (“CAA”), 42 U.S.C. § 7401, et seq., and the Administrative Procedure Act, 5 U.S.C. § 553(e),
seeking regulation of greenhouse gas (“GHG”) emissions from nonroad vehicles and engines.
Attachment 1. That petition asked the United States Environmental Protection Agency (“EPA”) to
make a finding pursuant to CAA § 213(a)(4), 42 U.S.C. § 7547(a)(4), that GHG pollutants emitted by
nonroad vehicles and engines endanger public health or welfare and proceed to issue regulations
limiting such emissions.

       Petitioners requested EPA to take action within six months of EPA’s receipt of the petition.
That period ran on July 29, 2008. EPA has not provided us with any direct communication about our
January 29, 2008 petition.

       On July 11, 2008, EPA released an advanced notice of proposed rulemaking for regulating
GHG emissions under the CAA. ("ANPR").1 The ANPR notes that our petition was received on
January 29, 2008, discusses some of the substance of our petition, and notes that our petition has been
included in the docket EPA established for the ANPR. However, the ANPR neither makes the
endangerment determination requested in our petition nor initiates the requested rulemaking process to
 Advance Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions under the Clean Air Act, EPA-HQ-
OAR-2008-0318, July 11 2008, available at However, as of July 25, this
document has yet to be published in the Federal Register.
                                                                                                    Page 1 of 6
restrict GHG emissions from nonroad vehicles and engines. Rather, the ANPR describes and solicits
comments on petitions the Agency has received to regulate such emissions from several sources,
including nonroad vehicles and engines.2 Merely describing the petition and soliciting comments fails
to respond to our request. Further, more than six months have passed since we filed our petition, yet
you have waited until this month to request comments that could have been solicited immediately upon
receipt of our petition. Had EPA requested comments on receipt, that comment period would have
ended and rulemaking commenced by now. Assuming that EPA publishes the ANPR in the Federal
Register by the date of this notice, its request for comments through the ANPR starts a new four-month
time period calling for comments by the end of November.3 Any action that you might propose after
that will go through yet another comment period. EPA’s response clearly does not meet the prompt
standard of action guaranteed by the APA.

        The CAA, in Sections 304(a) and (b), and EPA regulations at 40 C.F.R. §§ 54.2(a), and 54.3(a)
require that any person intending to file a legal action against the Administrator for unreasonable delay
in acting must give the Administrator 180 days notice of his or her intention to sue. This letter
constitutes that formal notice. By this letter, please be advised that we intend to initiate legal action for
EPA’s unreasonable delay in responding to our petition after 180 days from the date of this letter.

        Where, as here, the notice of intent is based on EPA’s failure to act, the notice must identify the
provisions of the CAA that require the agency to take action and describe the agency’s failure to
perform.4 Section 213 of the CAA applies to nonroad vehicles and engines. Section 213(a)(1), directs
EPA "to determine if . . . emissions [from nonroad engines and vehicles] cause, or significantly
contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."
Paragraphs (a)(2) and (a)(3) require EPA to study and if appropriate, regulate emissions of oxides of
nitrogen, carbon monoxide or volatile organic compounds.5 Under paragraph (a)(4), if EPA
determines that nonroad vehicle or engine emissions not referred to in subsection 2 "significantly
contribute to air pollution[,]” the Administrator may adopt standards to reduce such emissions.6
Accordingly, Congress has clearly authorized EPA to study and regulate emissions, such as GHG
emissions, from nonroad vehicles and engines. Although our January 29, 2008 petition requested EPA
to make a determination that GHG emissions from these sources significantly contribute to air
pollution that may reasonably be anticipated to endanger public health and welfare and to regulate
those emissions, EPA has reported no such determination.

        Our January 2008 petition summarized some of the evidence, including conclusions from the
2007 reports of the Intergovernmental Panel on Climate Change, with respect to human-induced
climate change and associated impacts on human and natural systems. Based on that material, we
asserted that the rise in atmospheric GHG concentrations had reached the point of “dangerous
anthropogenic interference with the climate system,” a perilous situation about which parties to the
United Nations Framework Convention on Climate Change have stated they will undertake concerted
action to avoid. The petition further stated that “[c]oncerted and quick action to cap and reduce GHG
emissions may still allow stabilization of CO2 concentrations at a level below that which renders
severe climate change inevitable.”

  ANPR at 1.
  ANPR at 2.
  40 C.F.R. § 54.3(a).
  CAA §§ 213(a)(2)-(3), 42 U.S.C. §§ 7547(a)(2)-(3).
  CAA § 213(a)(4), 42 U.S.C. § 7547(a)(4).
                                                                                                 Page 2 of 6
         Here, in the context of EPA’s inaction on our petition, when coupled with EPA’s failure to
restrict GHG emissions from any sector or source, we are forced to note the well-understood
consequence. Simply put, EPA’s failure to exercise its statutory authority to sharply cut GHG
emissions is consigning much of our nation and this planet to an inhospitable future. This inaction
therefore constitutes an enormous violation of the public trust, given the very short time frame in
which reversal of present emission trends must be achieved. Much this same point was made to an
international audience last year by Rajendra Pachauri, Chairman of the Nobel-prize-winning United
Nations Intergovernmental Panel on Climate Change (“IPCC”), when he declared: “If there’s no action
before 2012, that’s too late. What we do in the next two to three years will determine our future.”7

       Indeed, scientific reports published since January illustrate that our petition’s analysis may
have understated the urgency of the climate crisis and the need for a rapid and effective response.

        First, recent research suggests that stabilizing the climate system will not automatically result
from stabilized atmospheric GHG emissions. This is so because global temperatures may continue to
increase for centuries because of the declining capacity of forests and oceans to absorb carbon. For
this reason, then, “to achieve atmospheric carbon dioxide levels that lead to climate stabilization, the
net addition of CO2 to the atmosphere from human activities must be decreased to nearly zero.”8

        Second, an analysis by scientists of paleoclimate data shows that “long-term climate has high
sensitivity to climate forcings,” and that the present 385 ppm global mean atmospheric concentration
of CO2 is “already in the dangerous zone,” threatening, unless action is quickly taken to reduce such
concentrations, to drive the planet to “rapid changes that proceed out of our control.”9 Baring a rapid
reversal of present emission trends, then, “we will soon leave the climate of the Holocene, the world of
prior human history,” and thus bequeath to our progeny “a nearly ice-free planet.” To avert this
calamity, these scientists urge reducing atmospheric CO2 to 300-350 ppm, making adjustments to that
target “as scientific understanding and empirical evidence of climate effects accumulate.” 10 This goal
“must be pursued on a timescale of decades.…”11

        Third, a recent meta-analysis of studies since 1970 establishes that anthropogenic climate
change is having a discernible effect on physical and biological systems at both the global level and at
the continent scale, including in North America.12 These findings support and amplify those of the
IPCC in 2007.

        EPA, in conjunction with others, has begun to distill the relevant research and draw logically-
entailed conclusions. Most recently, a widely-circulated report of the US Climate Change Science
Program stated the following:

   Rosenthal, U.N. Chief Seeks More Leadership on Climate Change, N.Y. TIMES (November 18, 2007).
  H. Damon Matthews & Ken Caldeira, Stabilizing Climate Requires Near-Zero Emissions, 35 GEOPHYSICAL
RESEARCH LETTERS L04705 (2008), available at
  James Hansen, et. al., Target CO2: Where should humanity aim? (April 2008), available at
   Id. at 13.
   Cynthia Rosenzweig, et. al., Attributing physical and biological impacts to anthropogenic climate change, NATURE, 353-
57 (May 15, 2008).
                                                                                                            Page 3 of 6
        “Human-caused increases in the emissions of heat-trapping gases are responsible for
        most of the warming observed over the past 50 years. . . .

        “Temperature and precipitation have increased over recent decades, along with some
        extreme weather events such as heat waves and heavy downpours.

        “Warming is causing sea-level to rise as land-based ice melts and the warmer oceans

        “Arctic sea ice decline is accelerating. . . .

        “The specific patterns of recent climatic change show that it is primarily human-

        “Global temperatures will continue to rise; how much depends on the amount of heat-
        trapping emissions and how sensitive the climate is to those emissions.

        “Climate can also change abruptly, as is evident from ice core records of past climate.

        “The human effect on climate can be minimized if emissions are sharply reduced.”13

       The Program, of which the EPA is a part, also recognizes in another report that climate change
presents a serious threat to public health in the United States, noting:

        “It is very likely that heat-related morbidity and mortality will increase over the coming
        decades. . . .

        “The impacts of higher temperatures in urban areas and likely associated increases in
        tropospheric ozone concentrations can contribute to or exacerbate cardiovascular and
        pulmonary illness if current regulatory standards are not attained. . . .

        “Hurricanes, extreme precipitation resulting in floods, and wildfires also have the
        potential to affect public health through direct and indirect health risks. . . .

        “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. . . .

        “Health burdens related to climate change will vary by region. . . . The range of many
        vectors is likely to extend northward and to higher elevations. For some vectors, such
        as rodents associated with Hantavirus, ranges are likely to expand, as the precipitation
        patterns under a warmer climate enhance the vegetation that controls the rodent
        population. Forest fires with their associated decrements to air quality and pulmonary
Register: July 17, 2008 (Volume 73, Number 138), available at
                                                                                                    Page 4 of 6
         effects are likely to increase in frequency, severity, distribution, and duration in the
         Southeast, the Intermountain West and the West.

         “[C]limate change is very likely to accentuate the disparities already evident in the
         American health care system. Many of the expected health effects are likely to fall
         disproportionately on the poor, the elderly, the disabled, and the uninsured.”14

        Accordingly, recent research adds to the already overwhelming evidence that rapid and
effective restriction of GHG emissions is required to protect the biosphere and human populations.
And yet, as noted above, petitioners have received no direct substantive response from EPA about our
January 2008 petition seeking regulation of GHG emissions from the non-road sector. We again urge
EPA to take immediate action to begin the rule-making process.

         As we explained in the nonroad vehicle and engine petition, according to EPA, in 2007, CO2
emissions from the nonroad sector totaled 220,145,231 tons per/year. Construction and mining
equipment accounted for the largest share (32%) of the total CO2 emissions from nonroad sources,
followed by agricultural equipment, industrial equipment and lawn and garden equipment. As the EPA
itself noted in relation to a subset of nonroad vehicles and engines known as nontransportation mobile
sources, "[t]ogether, these sources emitted more greenhouse gases than boats and ships (domestic
travel in the United States), rail, and pipelines combined."15 EPA’s ANPR acknowledges that nonroad
sources emitted 12% of the total mobile source CO2 emissions in 2006, and that emissions from this
sector are expected to increase by approximately 46% between 2006 and 2030.16 Reducing emissions
from nonroad vehicles and engines can be accomplished both through changes in engine design and, as
EPA’s ANPR notes, through equipment redesign to allow accomplishment of tasks with the use of less

        As of this date, EPA has not responded to our petition requesting that the EPA determine that
GHG emissions from nonroad vehicles and engines significantly contribute to air pollution that may
reasonably be anticipated to endanger public health and welfare and adopt regulations to reduce GHG
emissions from these sources.18 Accordingly, Petitioners hereby provide notice that we intend to file
suit challenging EPA’s unreasonable delay in responding to our petition 180 days from the date of this
letter. Meanwhile, we remain open to discussing this matter. If you wish to do so, please contact the

   K.L. Ebi, F.G. Sussman, T.J. Wilbanks, U.S. Climate Change Science Program and the Subcommittee on Global Change
Research U.S. Environmental Protection Agency, Washington, D.C., USA, Analyses of the effects of global change on
human health and welfare and human systems [Gamble, J.L. (ed.)] ES-6 to ES-7, available at
   U.S. Environmental Protection Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2006, Annex 3, A-
122, available at
 Dan: when I tried to look this up, the EPA sent me to what I assume is the newer version of this report and those words are
on A-122 now. You can see here:
   ANPR at 325.
   Id. at 326.
   We note, in this regard, that California–joined by several states–has filed a virtually identical petition seeking your action
to regulate GHG emissions from nonroad vehicles and engines, and that you have failed to respond to that petition as well.
                                                                                                                  Page 5 of 6

To top