Recently, there has been quite a buzz around the issue of using the existing authority in the Clean Air Act to regulate greenhouse gas emissions. In July, U.S. EPA issued its Advanced Notice of Proposed Rulemaking (ANPR) responding to the Supreme Court’s decision in Massachusetts v. EPA and soliciting comment on use of the Clean Air Act to regulate greenhouse gases.
Notwithstanding EPA’s solicitation of public comments, the buzz really kicked in following a recent statement by Jason Grumet in a Bloomberg interview that an Obama Administration would regulate greenhouse gases under existing authority in the Clean Air Act if Congress fails to act within 18 months.
In an interview last week with Bloomberg, Mr. Grumet said that come January the Environmental Protection Agency "would initiate those rulemakings" that classify carbon as a dangerous pollutant under current clean air laws. That move would impose new regulation and taxes across the entire economy, something that is usually the purview of Congress. Mr. Grumet warned that "in the absence of Congressional action" 18 months after Mr. Obama’s inauguration, the EPA would move ahead with its own unilateral carbon crackdown anyway.
Left leaning blogs like Gristmill have come out in support of the idea:
I’ve talked to a few people behind the scenes who are big fans of this approach. One of its primary virtues is that it allows the EPA to build on all the great work that states have done, knitting together and rationalizing their various efforts. Another is that it can be done quickly, without a Congressional battle, enabling the U.S. to go into the 2009 Copenhagen climate talks with a good-faith effort in hand.
Others in academia and in the green movement have come out in support. In an article appearing in Environmental Finance, Michael Northrop and David Sassoon argue the Clean Air Act can be an effective tool for combating climate change. citing various legal experts from around the Country. They conclude their article by saying:
The Clean Air Act is already a mature, flexible and successful law designed to integrate the work of all economic sectors and all levels of government. Honed in three stages of effort – the original lawmaking, and two major rounds of amendments – it is a functioning national regulatory structure that spans decades of deliberation, compromise and practice.
By applying the Clean Air Act, the next president can stand on the shoulders of legal and regulatory precedent. He can adopt an executive branch strategy to complement the next round of legislative efforts, now also in preparation. He can lead climate policy development through existing authority, and ensure that the US has a strong position going in to the next round of international climate negotiations. Action in the first hundred days can set the stage for genuine US re-engagement in the international climate effort in
Copenhagen in 2009.
The Chamber’s report concludes that over one million mid-sized to large commercial buildings in the industrial, commercial and agricultural sectors could potentially become subject to a costly and bureaucratic permitting process if EPA moves forward with its proposed rulemaking. These include:
o 260,000 office buildings;
o 150,000 warehouse and storage;
o 140,000 mercantile;
o 100,000 schools and other educational facilities;
o 92,000 health care facilities;
o 71,000 hotels, motels and other lodging facilities;
o 58,000 food service industry buildings;
o 37,000 houses of religious worship;
o 26,000 public assembly facilities; and
o 23,000 restaurants and food sales facilities.
The debate over the statements by Obama’s adviser and the Chamber’s effort to block an endangerment finding are overblown. If EPA does not act, the Court’s will force them to. In fact, the Deseret Power case, could very likely trigger such regulation without further action by EPA or before a new Administration takes the oath of office.
Massachusetts v. EPA ,which said greenhouse gases are a "pollutant" under the Clean Air Act, sets in motion inevitable regulation under the Clean Air Act. U.S. EPA’s position is that the Clean Air Act is not applicable to GHGs until it moves forward with actual regulatory standards for their control or reduction. But that is only a matter of time. Even if EPA continues to delay action, suits challenging that delay will be successful, probably way before the 18 month time frame established by Mr. Grumet.
While other branches of the federal government (Transpiration, Energy, Agriculture and Commerce) have commented that regulation is not inevitable, such argument find little support in the findings of the Supreme Court. In my mind, due to inevitable Court action, those who worry about regulation of greenhouse gases under the current structure of the Clean Air Act would be wise to pursue Legislation.
As discussed in my next post, there is reason to worry about using the current structure of the Clean Air Act to regulate greenhouse gases.