House Committee Probes Legal Status of Greenhouse Gases

D.C., March 13, 2003—Today, the House Select Committee on Energy Independence
and Global Warming will hold a hearing on the Environmental Protection Agency’s
(EPA’s) response to the Supreme Court global warming case, Massachusetts v. EPA (April 2,

include, among others, U.S. EPA
Administrator Stephen Johnson and two plaintiffs in Mass. v. EPA, Lisa Heinzerling, professor,
UniversityLaw Center, and David Bookbinder, chief
climate counsel, Sierra Club.

Plaintiffs in Mass.
v. EPA wanted EPA to issue a finding that emissions of carbon dioxide
(CO2) and other greenhouse gases (GHGs) endanger public health and
welfare, and, based on such finding, propose first-ever GHG tailpipe emission
standards for new cars and trucks. However, setting GHG tailpipe standards could
trigger a massive expansion of EPA regulation of stationary sources under the
Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD)
pre-construction permitting program.

Similarly, an endangerment finding under the CAA’s
mobile emissions program (CAA Section 202) could compel EPA to initiate
economy-wide regulation of CO2 under the National Ambient Air Quality
Standards (NAAQS) program (CAA Section 108).

“America could end up with a carbon-suppression regime
far more onerous than any Congress is currently debating, yet without Congress
ever voting on it—and without any of Al Gore’s congressional allies taking
responsibility for the economic and administrative burdens,” said CEI Senior
Fellow Marlo Lewis. “Today’s hearing
gives the Select Committee an opportunity to probe core issues that both EPA and
plaintiffs ignored in Mass. v.

Questions Committee members and media should ask

(1) When plaintiffs were arguing
before the Court, were they aware that regulating CO2 under Section
202 could trigger a massive expansion of stationary source regulation under the
PSD program?

(2) When Congress enacted
Section 202 in 1970, did it intend for EPA to regulate untold thousands of
stationary sources for global warming purposes?

(3) Did the Court err in deciding
that EPA has authority to regulate CO2 under Section 202, if such
regulation necessarily leads to results Congress could not have intended and
never approved?

(4) Would an endangerment
finding under Section 202 set the stage for litigation to regulate CO2
under the NAAQS program? 

(5) In Mass. v. EPA, did plaintiffs intend to
establish a precedent for CO2 regulation under the NAAQS program? If
not, will they pledge to abstain from litigation aimed at compelling EPA to
initiate a NAAQS rulemaking for CO2?