The Anti-Energy Litigation Of The State Attorneys General: From Junk Science To Junk Law

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• On January 30, 2003, the Attorneys General (AGs) of Massachusetts, Connecticut, and Maine filed a notice of intent to sue U.S. Environmental Protection Agency (EPA) Administrator Christine Todd Whitman unless she agrees to propose mandatory controls on emissions of carbon dioxide (CO2), the principal greenhouse gas targeted by the non-ratified Kyoto climate treaty. The AGs assert that it is Whitman’s duty, under Section 108 of the Clean Air Act (CAA or Act), to begin the process of regulating CO2.

• Far from it being EPA’s duty to regulate CO2, EPA has no power to do so. The plain language, structure, and legislative history of the CAA demonstrate that Congress never delegated to EPA the power to regulate CO2. The AGs furnish no textual, contextual, or historical evidence that Congress conferred such power on EPA. They simply duck the paramount question of congressional intent. Instead, the AGs argue from “definitional possibilities” of words taken out of context—a type of argument the Supreme Court shot down in Food and Drug Administration v. Brown and Williamson [529 U.S. 120 (2000)].

• The CAA establishes an ambient air quality program, a hazardous air pollutant program, and a stratospheric ozone protection program. Nowhere does it even hint at establishing a global warming mitigation program. It is inconceivable that on an issue of longstanding debate like global warming, Congress would authorize EPA to control CO2—potentially the most expensive regulatory project in history—without ever once saying so in the text of the statute.

• The CAA’s sole mention of “carbon dioxide” occurs in Section 103(g), which directs the Administrator to develop “non-regulatory” strategies. The CAA’s sole mention of “global warming” occurs in Section 602(e), which directs the Administrator to “publish” (i.e., study) the global warming potential of ozone-depleting substances. In short, the CAA mentions CO2 and global warming only in the context of non-regulatory provisions.

• The AGs note that CAA Section 103(g) refers to CO2 as an “air pollutant.” However, they ignore the provision’s concluding admonition: “Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.” If nothing in Section 103(g) can authorize the imposition of control requirements, then the passing reference therein to CO2 as an “air pollutant” cannot do so.

• A similar admonition in Section 602(e) immediately follows the CAA’s sole reference to “global warming”: “The preceding sentence shall not be construed to be the basis of any additional regulation under this chapter [i.e., the CAA].”

• The AGs claim EPA has a duty to regulate CO2 under the national ambient air quality standards (NAAQS) program. But the NAAQS program, with its state implementation plans and county-by-county designation of attainment and non-attainment areas, addresses local and regional air quality problems. It has no rational application to a global phenomenon like the greenhouse effect.

• For example, if EPA set a NAAQS for CO2 above current atmospheric levels, the entire country would be in attainment, even if U.S. consumption of hydrocarbon fuels suddenly doubled. Conversely, if EPA set a NAAQS for CO2 below current levels, the entire country would be out of attainment, even if all power plants, factories, and automobiles shut down. Attempting to fit CO2 into the NAAQS regulatory structure would be an absurd exercise in futility—evidence that when Congress created the NAAQS program, it did not intend for EPA to regulate CO2.

• Legislative history also compels the conclusion that EPA may not regulate CO2. For example, the House-Senate conference committee on the 1990 CAA Amendments rejected a Senate passed version (S. 1630) that would have established a regulatory “climate protection” program. As the Supreme Court has emphasized: “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” INS v. Cardozo-Fonseca, 480 U.S. 421, 442-43 (1983)

• The AGs invoke the authority of Clinton-Gore EPA General Counsels Jonathan Z. Cannon and Gary S. Guzy, who opined that several CAA regulatory provisions are “potentially applicable” to CO2. During the 106th Congress, National Mining Association Legal Affairs Committee Counsel Peter Glaser and House Subcommittee Chairman David McIntosh (R-IN) produced extensive rebuttals of the Cannon-Guzy opinions. The AGs are surely aware of this debate, yet do not address any of the Glaser-McIntosh arguments. They simply recycle the Cannon-Guzy line as if it had never been challenged and were completely unproblematic.

• The scary scenarios presented in the Bush Administration’s Climate Action Report 2002 (CAR), which the AGs cite as the scientific basis for EPA regulation of CO2, come from climate models that could not reproduce past U.S. temperatures better than could a table of random numbers. The CAR fails to meet Federal Data Quality Act standards for objectivity and utility of information. Any policy decisions EPA based upon it would be challengeable as arbitrary and capricious.

• On February 20, 2003, the three AGs, joined by four others, filed a separate notice of intent to sue Administrator Whitman unless she agrees to promulgate New Source Performance Standards (NSPS) for CO2 emissions from power plants, pursuant to Section 111 of the CAA. Once again the AGs rely on “definitional possibilities” and duck the pivotal question of congressional intent. Congress enacted Section 111 in 1970—before global warming was even a gleam in Al Gore’s eye. At no point in the deliberations on the 1977 and 1990 CAA Amendments did Congress even consider proposals to apply the NSPS program to global warming. In the 105th, 106th, and 107th Congresses, Sen. Patrick Leahy (D-VT) introduced legislation to establish CO2 performance standards for power plants. Each time the bill failed to attract even one co-sponsor. The AGs would have us believe that Congress implicitly enacted the substance of Leahy’s three-time loser back in 1970. The phrase “laughed out of court” was invented for just such inanities.

• It is not difficult to see what the AGs stand to gain if EPA classifies CO2 as a regulated pollutant. Instantly, tens of thousands of hitherto law-abiding and environmentally responsible businesses (indeed, all fossil fuel users) would become “polluters.” The number of firms potentially in violation of the CAA would increase exponentially. Since States have primary responsibility for enforcing the CAA, the AGs’ prosecutorial domain would grow by orders of magnitude.

• The AGs’ Notices create a test of leadership for Administrator Whitman. The Notices are designed to put her in a cross fire between President Bush, who opposes CO2 regulation, and the EPA career bureaucracy, which has long sought the power to regulate CO2 in order to increase its control over the U.S. economy. Whitman must decide where her loyalties lie—with the rule of law, economic growth, and affordable energy, or with the rule of bureaucrats, regulatory excess, and Kyoto-style energy rationing. The AGs’ action gives Whitman a superb opportunity to repudiate Clinton-Gore EPA’s mischievous legal opinions and avert an era of anti-energy litigation.