Letter to Sen. Feinstein on CO2 and the Clean Air Act

February 20, 2008

The Honorable Dianne Feinstein

331 Hart Senate Office Building

Washington, D.C. 20510

Dear Senator Feinstein:

We write to share our concerns about your January 25, 2008 letter to Environmental Protection Agency (EPA) Administrator Stephen L. Johnson. Like the plaintiffs in the Supreme Court global warming case (Massachusetts v. EPA, April 2, 2007), you apparently want EPA to issue a finding, under Section 202 of the Clean Air Act (CAA), that carbon dioxide (CO2) emissions endanger public health and welfare—the prerequisite for EPA to establish first-ever CO2 emission standards for new cars and trucks. We believe an endangerment finding would have disastrous consequences for the economy, environmental protection, and the political process.

Although Section 202 applies only to new motor vehicles, an endangerment finding would also make CO2 a pollutant “subject to regulation” under the CAA’s Prevention of Significant Deterioration (PSD) program, which regulates emissions from stationary sources.

Under the CAA, no new or existing “major” stationary source of a regulated pollutant may be built or modified (if the modification increases emissions) unless the source first obtains a PSD permit. A source is defined as “major” if it is either in one of 28 listed industrial categories and emits at least 100 tons per year of an air pollutant, or is any other type of establishment and emits at least 250 tons per year. Two hundred and fifty tons may be a reasonable regulatory threshold for smog- and soot-forming emissions. It is a miniscule quantity of CO2—roughly the amount emitted each year by a mid-sized commercial building that uses fossil fuels for heating.

A PSD permit can take years and hundreds of thousands to millions of dollars to obtain. In their November 8, 2007 testimony before the House Government Reform and Oversight Committee, attorneys Peter Glaser and John Cline state that, “No small business requiring a moderate-sized building or facility heated with fossil fuel could operate subject to the PSD permit administrative burden.”

PSD permitting is time-consuming because, to obtain a permit, a regulated entity must install “best available control technology,” and BACT determinations are made on a case-by-case basis. However, nobody knows yet what BACT for CO2 entails. Glaser and Cline caution that applying BACT to CO2 would create “considerable, and perhaps fatal, uncertainty for businesses.” They explain: “Since BACT determinations for CO2 have no regulatory history at this time, and can vary by type of facility and from state-to-state, businesses wishing to construct new sources or modify existing ones would have no basis for planning what the regulatory requirements will be.” In a December 12, 2007 letter to Congress, the Chamber of Commerce and 18 other trade associations warn that extending PSD to CO2—the unavoidable consequence of an endangerment finding—could bring construction activities “to a screeching halt.”

The likely environmental repercussions are equally unsavory. Once EPA and its state-level counterparts start making BACT determinations for CO2, they would be flooded with permit applications from potentially hundreds of thousands of “major” stationary sources. Environmental agencies would be forced to squander their administrative resources pursuing inconsequential CO2 reductions to the neglect of more critical, statutorily-required CAA responsibilities.

An endangerment finding could also compel EPA to initiate a National Ambient Air Quality Standards (NAAQS) rulemaking for CO2. Under the NAAQS program, EPA must reduce atmospheric concentrations of the targeted pollutant to a level that protects public health and welfare with an “adequate margin of safety.” Plaintiffs in Mass v. EPA argued that current CO2 levels already harm public health and welfare. What would it take to actually lower CO2 levels? The Kyoto Protocol would barely slow the increase in CO2 concentrations. Even outright de-industrialization of the United States might not be enough to decrease CO2 levels. Establish NAAQS for CO2, and there is in principle no limit to the economic sacrifices that could be demanded of the American people.

Congress never intended for Section 202, which deals solely with motor vehicle emissions, to instigate a massive expansion of stationary source regulation, much less to depress the construction industry. Congress also did not intend for Section 202 to spawn an administratively crippling paperwork nightmare for EPA and its state-level counterparts. Nor did Congress intend for Section 202, which requires EPA to consider compliance costs when setting tailpipe emission standards, to leverage money-is-no-object regulation under the NAAQS program.

Above all, Congress never intended for Section 202 to allow litigants and courts to usurp legislative power and set climate policy for the nation. Yet the regulatory cascade triggered by an endangerment finding could subject the U.S. economy to the equivalent of a dozen Kyoto Protocols without Congress ever voting on it.

You may not have been aware of the economic, administrative, and constitutional perils that an endangerment finding could unleash when you wrote to Administrator Johnson. We would be happy to discuss these important issues with you at your convenience.


Fred L. Smith, Jr., President                

Marlo Lewis, Senior Fellow

Competitive Enterprise Institute


Sally Pipes

President and CEO

Pacific Research Institute for Public Policy


Duane Parde


National Taxpayers Union


Matt Kibbe

President and CEO

Freedom Works


Paul K. Driessen

Senior Policy Advisor

Congress of Racial Equality 


Thomas Schatz


Council for Citizens Against Government Waste


George Landrith


American Environmental Coalition


Lewis K. Uhler

Founder and President

National Tax Limitation Committee


Grover Norquist


Americans for Tax Reform


David Keene


American Conservative Union


Dan Simmons

Natural Resources Director

American Legislative Exchange Council


Honorable Malcolm Wallop


Frontiers of Freedom


Jim Martin


60 Plus Association


Terry Scanlon


Capitol Research Center


Kelsey Zahourek

Executive Director

Property Rights Alliance


Cliff Kincaid


America’s Survival, Inc.


Dr. William Greene







Hon. John Dingell

Hon. Joe Barton

Hon. Pete V. Domenici

Hon. James Inhofe

Hon. Thad Cochran

Hon. George V. Voinovich

Hon. Christopher S. Bond

Hon. Fred Upton

Hon. Rick Boucher

Hon. Samuel W. Bodman

Hon. Joshua Bolten

Hon. Edward Lazear

Hon. Joel Kaplan

Hon. James Connaughton

Hon. James Allen Nussle

Hon. Karl Zinmeister

Hon. Fred Fielding

Hon. Allan Hubbard