Regulating Greenhouse Gases: Will EPA Take a Dive?

The International Center for Technology Assessment (ICTA) wants the Environmental Protection Agency (EPA) to regulate carbon dioxide. This fall, ICTA, an anti-technology group founded by Jeremy Rifkin, and nearly 20 other environmentalist and progressive activist groups filed a petition calling upon EPA to regulate carbon dioxide and three other “greenhouse gases” under the Clean Air Act.1 Such regulation would be the first step toward implementing the United Nations global warming treaty known as the Kyoto Protocol. EPA must respond to the petition in the first part of the year or risk a lawsuit from ICTA and the other petitioners.

EPA, for its part, might not need much forcing, as it is already on record supporting several of the ICTA’s arguments. In April 1998, then-EPA General Counsel Jonathan Cannon issued a memorandum declaring that carbon dioxide meets the Clean Air Act’s definition of “air pollutant.” 2 Current General Counsel Gary Guzy reiterated this view before a Congressional hearing in October. 3 Both stressed that EPA “has made no determination to date to exercise [its] authority” to regulate greenhouse gases under the Act. Yet both clearly believe that EPA could move forward with regulation if it wanted to – or if it thought such a move were politically viable.

ICTA’s argument. Building on the Cannon Memorandum and Guzy testimony, ICTA’s argument is rather straightforward: Carbon dioxide and other greenhouse gases meet the statutory definition of “air pollutants” under the Act and “cause or contribute” to air pollution that could harm “public health or welfare,” and therefore must be regulated. 4 These terms are broadly defined under the Act, so ICTA’s claim may seem superficially plausible. For example, the Clean Air Act does not require that EPA prove a given emission threatens public health, only that such emissions “may reasonably be anticipated to endanger public health or welfare.” 5 The “public welfare” that can justify protective regulation encompasses impacts on a host of environmental elements, including “climate.” 6 Because Section 202(a) of the Clean Air Act says the EPA Administrator “shall” regulate such emissions from automobiles, ICTA argues, EPA must regulate greenhouse gas emissions.

ICTA’s statutory arguments might be plausible were it not for the history and structure of the Clean Air Act. The clear intent of the Act when first enacted in 1967, and as subsequently amended in 1970, 1977, and 1990, is to control local and regional air pollution, such as soot and smog. Indeed, the “heart” of the Act, according to the Supreme Court, is the set of provisions governing the creation and attainment of national air quality standards that localities are required to meet. 7 Under Title I of the Act, EPA sets ambient air quality standards at the level necessary to safeguard public health and welfare with “an adequate margin of safety.” 8 States then develop implementation plans to bring non-complying metropolitan areas into attainment. The goal is to ensure that the ambient air in every county meets a minimum threshold, and the structure is premised on the notion that each region is capable of enacting measures that will enable the air quality standard to be met. The Act even includes special provisions to account for cases in which pollution from one part of the country drifts into another.

Incompatible framework. The wisdom of this framework can be questioned, but the framework itself is clearly incompatible with the regulation of greenhouse gases as such. Substances which disperse throughout the global atmosphere, such as carbon dioxide, are “fundamentally different than any of the substances the EPA regulates as a criteria pollutant,” according to environmental attorney Peter Glaser. 9Glaser states, “It is not even theoretically possible to meaningfully affect ambient concentrations of carbon dioxide in the troposphere through a program of designating non-attainment areas and requiring the submission of state-by-state [implementation plans].” 10 Moreover, accepting current model projections, atmospheric concentrations of greenhouse gases will continue to rise irrespective of what measures any given non-attainment area enacts. Indeed, due to continuing emission increases in the developing world, greenhouse gas concentrations would continue to rise in the 21st century even were all U.S. cities to cease their emissions altogether. Thus, were EPA to set a carbon dioxide standard under the Act, no state could possibly meet it.

Regulation rejected by Congress. One cannot plausibly argue that Congress’ failure to address more “global” concerns like climate change was unintentional. Congress gave due consideration to concerns about climate change when the Act was last amended. The 1990 Amendments included a new subsection on ozone depletion and several provisions encouraging “non-regulatory” approaches to greenhouse gas emissions. Indeed, Congress considered and rejected an explicit proposal to regulate greenhouse gases. The amendments initially approved by the Senate Committee on Environment and Public Works included limits on automobile tailpipe emissions of carbon dioxide. This language was stricken before passage due to staunch opposition on many fronts. An amendment to restore the emission controls was labeled a “dealbreaker” and never adopted. In the end, Congress told EPA to study greenhouse gas emissions, not to regulate them.

Were that not enough, several times since 1990 Congress has rejected the authorization of regulatory controls on greenhouse gases. In 1995, the Senate unanimously approved the Byrd-Hagel resolution, stating the U.S. will not act to control greenhouse gas emissions unless and until the rest of the world is willing to follow suit. More recently, Congress enacted the “Knollenberg Amendment” to the appropriations of EPA and several other agencies explicitly barring EPA from taking measures to implement the Kyoto Protocol until the Senate consents to ratification.

Constitutional questions. Forcing EPA to regulate carbon dioxide and other greenhouse gases without explicit Congressional authorization would also raise profound constitutional questions. Regulating greenhouse gas emissions would dramatically expand EPA’s regulatory authority – even more than the draconian clean air standards that were struck down by a federal court last May. 11 Such an explosion of regulatory power can constitutionally occur only with Congressional approval. As the Supreme Court noted in 1988, “It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” 12 However unwise regulation of greenhouse gases may be – and such regulation would be quite unwise – there is room for legitimate debate over whether to enact “precautionary” measures on climate change. 13 Yet this is a debate for Congress, not the courts.

An environmentalist petition calling for more EPA regulation is nothing new. ICTA and its green comrades do it all the time. But rarely do petitions for more regulation threaten to unleash regulation of this magnitude. The ICTA petition specifically calls for the imposition of tighter automobile fuel economy standards, despite their negative impact on vehicle crash safety, and federal mandates for the production and sale of hybrid and fuel cell vehicles. In other words, ICTA wants the American automotive fleet redesigned by EPA.

Ubiquitous regulation. If EPA obtains regulatory authority over greenhouse gases, however, your next automobile is only the beginning. Carbon dioxide is the most ubiquitous industrial byproduct known to humanity. A necessary component for life on Earth, humans exhale it with every breath. Carbon dioxide is also the inevitable result of fossil fuel combustion. Because fossil fuels are the dominant source of affordable energy in the world, the threat of global warming provides an excuse to regulate energy use throughout the economy. Once EPA obtains the authority to regulate carbon dioxide and methane from vehicle tailpipes, it would be a small step to assert authority over emissions from power plants, factories, small businesses, and even farms.

EPA has strong arguments to make against its authority to regulate carbon dioxide, but it is unlikely to make them. This is nothing new. Environmental agencies have a disturbing habit of only half-heartedly fighting efforts to expand their authority through the courts. Take the case of wetlands regulation. Congress never explicitly authorized the federal regulation of wetlands under the Clean Water Act. That was the decision of a lone federal court judge in 1975 who looked favorably upon a lawsuit filed by the Natural Resources Defense Council. 14 Not so surprisingly, the Feds accepted this “loss” and began regulating prairie potholes and damp depressions throughout the nation.

EPA taking a dive. EPA has taken its share of dives in cases brought by environmental groups. Earlier this year, it lost a court challenge to regulations governing which highway projects are eligible for federal funding in areas that don’t meet air quality standards. 15 The ruling was split, but EPA declined to appeal. Instead, EPA settled out of court with its accusers, the Environmental Defense Fund, and agreed to impose tighter restraints on highway projects nationwide.

In 1994, EPA lost a case brought by the American Lung Association. 16 EPA, the court ruled, was obligated to review existing air quality standards for particulate matter and would be required to consider a new standard. Rather than appeal the suit, EPA obliged, proposing to tighten air quality standards for ozone and particulate matter. EPA’s proposed rules, the largest, costliest, and most controversial in EPA’s history, were promulgated in November 1996, just after the midterm Congressional elections. The subsequent Congress was unable to reverse the rules; only later were they invalidated by a federal court.

The stakes are much higher this time around. Who’s to say EPA wouldn’t wait to announce formal action, or even a consent decree, on the regulation of carbon dioxide after the next elections. After all, EPA did it before. With carbon dioxide it could just as well do it again.

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1 International Center for Technology Assessment, et al., Petition for Rulemaking and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions from New Motor Vehicles under § 202 of the Clean Air Act, October 20, 1999, available at <http://www.icta.org/legal/ghgpet.doc>.

2 Jonathan Z. Cannon, Memorandum to Carol M. Browner, Administrator, “EPA’s Authority to Regulate Pollutants Emitted by Electric Power Generation Sources,” April 10, 1998.

3 Testimony of Gary S. Guzy before a Joint Hearing of the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs of the Committee on Government Reform and the Subcommittee on Energy and Environment of the Committee on Science, U.S. House of Representatives, October 6, 1999.

4 See 42 U.S.C. § 7602(g); 42 U.S.C. §7521(a)(1).

5 42 U.S.C. §7521(a)(1).

6 42 U.S.C. §7602(h).

7 Train v. Natural Resources Defense Council, 421 U.S. 60, 66 (1975).

8 42 U.S.C. §7409(b)(1).

9 Testimony of Peter Glaser before a Joint Hearing of the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs of the Committee on Government Reform and the Subcommittee on Energy and Environment of the Committee on Science, U.S. House of Representatives, October 6, 1999.

10 Id.

11 See American Trucking Associations v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) rehearing granted in part, denied in part, rehearing en banc denied, No. 97-1440 (Oct. 29, 1999).

12 Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988).

13 See, e.g., The Costs of Kyoto: Climate Change Policy and Its Implications, Jonathan H. Adler, ed. (Washington, D.C.: Competitive Enterprise Institute, 1997). See also Indur Goklany, “Richer Is More Resilient: Dealing with Climate Change and More Urgent Environmental Problems,” in Earth Report 2000: Revisiting the True State of the Planet, Ronald Bailey, ed. (New York: McGraw-Hill, 1999).

14 Natural Resources Defense Council v. Callaway, 392 F.Supp. 685 (D.D.C. 1975).

15 Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir. 1999).

16 See American Lung Association v. Browner, 884 F. Supp. 345 (D. Ariz. 1994).