On December 7, 2009, the EPA released a statement concluding that greenhouse gases (GHG) threaten public health, welfare, and the environment, and in turn, warrant regulation under the Clean Air Act (CAA). The implications of such a statement will be substantial and far-reaching, as many businesses will soon have to report on and abate their carbon footprints under the EPA’s strict command-and-control regulatory approach.

Greenhouse gas legislation has been in the works for over a year now, however this endangerment finding has done more to strike fear into the hearts of business executives far more than the pending cap-and-trade Bill in Congress. The reason for this comes down to the fundamental differences in the way the regulatory regimes designed to reduce greenhouse gas emissions will be implemented. An NPR news report indicates that “Business groups have strongly argued against tackling global warming through the Clean Air Act, saying it is less flexible and more costly than the cap-and-trade bill being considered before Congress.” (NPR, 2009). The command-and-control regulatory approach under the CAA tends to be a more expensive measure for businesses because it involves a “one-size fits all approach” where the EPA will step in and recommend Best Available Control Technologies (BACT). These technologies typically involve expensive upgrades or retrofits that do not take into consideration other methods that may be more appropriate for the corporation.

The cap-and-trade market-based approach is favored by economists and corporations alike because it allows for more flexibility in implementation. A cap on emissions is determined at the Congressional level, polluters are required to purchase permits, or “allowances” if they are given away for free, to emit greenhouse gases in their operations. Under such a scheme, corporations will have an incentive to reduce their carbon footprint in order to sell their excess permits to those corporations unable or unwilling to reduce their emissions. The cap-and-trade method allows for money to be made, and hopefully, more efficiency measures to be established.

In the time since the EPA’s announcement, numerous business and conservative political groups have been gathering steam in their opposition to the ruling. On December 24th, 2009, the National Cattleman’s Beef Association filed a petition to the rule in the DC Circuit Court of Appeals, citing that “…increased energy costs associated with this ruling will be devastating for agriculture and the public as a whole.” (NCBA, 2009). Earlier in November 2009, the Republican Governor of Texas, Rick Perry, issued a statement to EPA urging that a proposed framework for regulating greenhouse gases be avoided due to its “devastating implications for Texas’ economy and energy industry” (Office of the Governor, Rick Perry, 2009). On January 20, 2010, U.S. Sen. Lisa Murkowski (R-Alaska) is expected to “shut down”the GHG ruling by “seeking an amendment to an unrelated debt bill… or will seek a resolution of disapproval, which would not be subject to filibuster” (Environmental Leader, 2010).

We have yet to see what will come out of this opposition. The good news for corporations is that the EPA ruling has done much to spur talk on the movement of the GHG legislation pending in Congress. For now though, the status of GHG legislation is at a standstill. After a failure at Copenhagen by the world’s nations to reach an agreement on a global climate accord, opinions in the U.S. are that current GHG legislation will suffer a similar fate. Congressional committees have been established to combine elements of the Waxman-Markey House Bill and the Kerry-Boxer Senate Bill to be re-voted on in the House and Senate in the first quarter of 2010. Pundits suggest that if a decision is not made before April 2010, the U.S. should not expect a climate bill to be passed this year, as attention will be focused on the mid-term elections.

Hold on to your hats, this could be a bumpy ride…