EPA limits solicitation of comment on the proposal to the simple statements on page six to the effect that it seeks comment on all aspects of this action (data, methodology, and major legal and policy considerations). While this is efficient and legally sufficient, the agency may want to highlight a few key areas in which comment would be most useful. The first two issues that we’ve identified above might be worthy of an express request for comment.
EPA may also need to clarify the relationship between comment on this proposal and the July 30, 2008 Advance Notice of Proposed Rulemaking on Greenhouse Gas Emissions (ANPR). In footnote 11, EPA indicates that it is responding to a few key comments from the ANPRM in this proposal related to the endangerment and contribution findings and asks commenters to “submit to the docket for today’s action any comments they want EPA to consider as it makes a decision on this proposed determination.”
We recommend that EPA move the footnote 11 discussion up to the main body of the proposal at page 6 and explicitly state that commenters may not rely on prior submission of comments to the ANPR and that if parties wish EPA to consider comments made in response to the ANPR or other rulemakings, they should re-submit those comments here with an appropriate explanation as to how the commenter believes those comments relate to issues raised in this proposal.
We can imagine a party trying to make out a challenge to this endangerment finding based on arguments that were raised entirely or primarily in comments submitted in response to the ANPR, not this proposal (a prospect that is somewhat more likely due to the fact that EPA in various places discusses comments made in response to the ANPR).