On Friday, the House passed the Waxman-Markey climate change bill by the narrow vote of 219 to 212. Experts predict that the bill will fail to garner enough votes in the Senate to pass.

Does that mean that businesses are off the hook for greenhouse gas (GHG) reduction?

No. The Environmental Protection Agency has just completed a 60-day comment period on its proposed finding that GHG endangers public health and welfare and contributes to climate change. By making an “endangerment” finding, the EPA now can regulate GHG emissions under the Federal Clean Air Act. The EPA regulations will affect every business, large or small across America.

Many experts see the Clean Air Act, which was originally passed in 1970 to regulate air pollutants like carbon monoxide, nitrogen dioxide, ozone, sulfur dioxide and lead, is the wrong vehicle to regulate CO₂. There is great fear in the business community that if the EPA goes forward with GHG regulations now it would result in massive class action litigation for years.

Lawsuits could be brought by private or public entitles. Massachusetts Attorney General Martha Coakley, for example, has consistently urged EPA regulation of GHG under the Clean Air Act.

At least 12 other attorneys general from Arizona, California, Connecticut, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Washington joined in Attorney General Coakley’s support of the endangerment finding.

As Glenn Lammi in U.S. News & World Report suggests, “A formal government proclamation that greenhouse gases are a threat to public health and welfare, and are thus subject to the Clean Air Act, is a dream come true for plaintiffs’ lawyers and litigious professional activists.”

EPA regulation of GHG will open the floodgates of climate change litigation similar to and perhaps greater than asbestos litigation. Recall that asbestos litigation began as a trickle in the late 1960’s and remains a lucrative practice for law firms to this day.

Swiss Re, the Zurich-based insurer, released a new report warning that climate change lawsuits might develop more quickly than asbestos-related claims.

While the EPA could issue GHG regulations now, observers think it will wait to see how the climate change bill fares in the Senate. The U. S. Chamber of Commerce and the National Association of Manufacturers are more focused on preventing the Senate from passing the climate bill than on EPA regulations. Business groups believe that, at this juncture with the economy still down, the Obama Administration would rather leave the issue GHG issue in Congress than the EPA. Forbes

Wherever the GHG regulation debate ends up, business groups are preparing to oppose it. “There is no evidence that CO₂ has an impact on health and welfare, ” said William Kovacs, the Chamber’s senior vice president of environmental, technology and regulatory affairs, in the Politico.

However you view GHG regulation, one thing is absolutely certain the clear winners will be the lawyers.

Photos:

http://www.sxc.hu/photo/477966/

http://www.sxc.hu/photo/327153/

Copyright 2009 —- K.J. Collins