The proposal has spurred concerns that the Obama administration has prejudged the outcome of its proposed "endangerment" finding, which is still undergoing a public comment period.
"A commitment to regulate greenhouse gases for cars brings with it a final endangerment determination, so the decision to regulate greenhouse gases from cars indicates that they plan to finalize the endangerment determination," said Roger Martella, who was EPA general counsel under President George W. Bush.
In April, EPA released a proposed finding that greenhouse gases threaten public health and welfare. The agency also proposed to find that emissions of carbon dioxide and other greenhouse gases from new motor vehicles are contributing to this mix of greenhouse gases in the atmosphere and therefore also threaten public health and welfare. Such a finding would require the agency to regulate tailpipe emissions under the Clean Air Act.
EPA will hold the second of two public hearings on the finding Thursday. The public comment period ends June 23.
It comes as no surprise that EPA plans to finalize the endangerment finding, Martella said, but he said the sequencing was troubling. "It is important in a public comment process to consider all the views that are submitted and to respond to the views before finalizing a decision," he said.
Jeff Holmstead, an attorney at Bracewell & Giuliani and former EPA air chief under Bush, said, "They'll have a real legal problem if it looks like they've prejudged the endangerment finding."
But Dan Becker, director of the Safe Climate Campaign, said today's proposal was consistent with the Supreme Court's Massachusetts v. EPA ruling, which affirmed EPA's authority to regulate greenhouse gas emissions.
"I don't think that there's any doubt that global warming poses a threat to health and welfare, and I think the final formal finding will be forthcoming," Becker said. He added that the administration did not issue any formal regulations today; it merely laid out plans for the future.
Industry praise, but 'still more to talk about'
Automakers have a long history of opposing increased federal regulation, but their fears that the waiver would be granted spurred their embrace of new CAFE standards crafted by DOT. Today, auto industry officials applauded the president's effort to bring together a wide range of stakeholders to hammer out what one trade group described as "broad outlines of an agreement."
"What's significant about the announcement is it launches a new beginning, an era of cooperation," said Dave McCurdy, president of the Alliance of Automobile Manufacturers, a trade group representing Detroit's Big Three, Toyota Motor Co. and other carmakers. "The president has succeeded in bringing three regulatory bodies, 15 states, a dozen automakers and many environmental groups to the table. We're all agreeing to work together on a national program."
Still, while McCurdy and many of the alliance lauded the move toward a national program – something the industry has increasingly called for in the face of California and other states' efforts to regulate emissions – McCurdy made it clear that the proposed rulemaking was still a work in progress.
"The debate over who sets CO2 and fuel economy standards for autos has been decided, but there is still more to talk about," he said in a statement. "We have the broad outlines of an agreement, but we will need to work closely with NHTSA, EPA and California in the rulemaking process to resolve multiple issues, trying to fit all the elements together into one program. There is a strong commitment from everyone to move past any hurdles that may arise as we work through differences in the way these two federal agencies set standards."