The U.S. Environmental Protection Agency (EPA) is poised to regulate greenhouse gas emissions (GHGs) from mobile sources–which is to say, they are poised to create fuel efficiency standards for cars and trucks.
Once EPA promulgates this regulation the agency will eventually be forced to regulate carbon dioxide economy-wide, unless Congress steps in. But this Congress isn’t predisposed to regulate carbon dioxide in a responsible way.
EPA is poised to regulate GHGs because of the Supreme Court’s 5-4 decision in Massachusetts v. EPA. The decision had three main holdings:
1. States have standing to sue EPA based on alleged injuries brought about by climate change.
2. EPA has the authority to regulate carbon dioxide (and other GHGs) as a “pollutant” under Section 202 of the Clean Air Act. Section 202 regulates the emissions of new vehicles.
3. EPA failed to justify its decision not to exercise its authority to regulate GHGs.
This isn’t the first time people have thought EPA has the authority to regulate carbon dioxide.
In 1999, during the Clinton Administration, environmental groups petitioned EPA to regulate CO2 under Section 202. The Clinton EPA agreed it had the authority but declined to regulate. One reason it declined is because a Republican Congress attached riders to appropriations bills forbidding EPA from spending any money to regulate carbon dioxide.
When President George W. Bush took office and made clear he wasn’t going to agree to binding cuts of GHG emissions under the Kyoto Protocol, the environmentalists turned to other avenues to regulate greenhouse gases. A few state attorneys general petitioned EPA to regulate greenhouse gases. The Bush EPA formally denied their petition, arguing EPA didn’t have the necessary authority and even if it did, the Clean Air Act is ill-suited to handle a global issue like climate change. Because the Bush Administration formally denied the petition, the attorneys general were permitted to take EPA to court.
Supreme Court’s Decision
Massachusetts v. EPA made its way through federal court and wound up before the Supreme Court in 2006. The Supreme Court issued its decision on April 2, 2007.
The first question the Supreme Court had to answer was if Massachusetts had standing to bring the case in the first place. Here, the Court blazed new ground by relaxing the standing requirements.1
The Constitution requires plaintiffs to have standing to bring a suit. This means the plaintiff must be able to show he has suffered a “concrete and particularized” injury and this injury is one a court could redress.
In the area of climate change, this should have been at least a little challenging for the Supreme Court, but they didn’t find it challenging at all. Here are a list of the alleged harms the Supreme Court cited:
- 1998 was the hottest year on record
- Temperatures are rising due to human activities
- Glaciers are retreating
- The extent of snow cover is falling
- Melting is occurring earlier each spring
- Sea level rise is accelerating
- Winter snowpack has been decreasing
- The incidence of disease is increasing
- Hurricanes are getting stronger.
CO2 a Pollutant?
I’m not going to discuss the legal hoops the Supreme Court jumped through to find Massachusetts had standing. The majority did not seem to care which precedents it had to rewrite to reach the conclusion that carbon dioxide is a pollutant.
It was important for the Court to find carbon dioxide is a pollutant, because Section 202 of the Clean Air Act requires EPA to regulate “any air pollutant … which may reasonably be anticipated to endanger public health or welfare.”
The real question is, what is the definition of an “air pollutant”? The majority decided it is any “airborne compound of whatever stripe.” They even went so far as to say the Clean Air Act was unambiguous on this point. On this point, the Court was unambiguously wrong.
The Clean Air Act defines a pollutant as an “air pollution agent.” But carbon dioxide is inert, colorless, odorless, and not toxic to humans at 20 times ambient levels. Justice Antonin Scalia in dissent explained how flawed the majority’s misconstruction of this term was. He wrote, from the majority’s opinion “it follows that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’ This definition defies common sense.”
EPA Can Regulate CO2, Now What?
Under the Clean Air Act, if pollution causes harm, EPA has to regulate it. As the Supreme Court states:
Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.
I believe the Supreme Court is wrong on this. The real question isn’t whether GHG contribute to climate change, but whether human-caused GHG emissions lead to harms–such as the harms the Supreme Court describes earlier (sea level rise, less snowpack, etc.).
This boxes EPA in. According to the Supreme Court, the agency must decide that greenhouse gases are not contributing to climate change to avoid regulating greenhouse gas emissions from new motor vehicles.
The only “out” the majority gave EPA was if it could show the “scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming.” This is not an easy task, because EPA has stated in the past that climate change is a problem, but a problem the agency is ill-equipped to deal with.
Does it Matter if EPA Regulates Motor Vehicles?
The first thing to understand about the ramifications of this decision is that greenhouse gas regulation is fuel efficiency regulation. Congress already has explicitly given the authority to regulate fuel efficiency standards to the National Highway Traffic Safety Administration (NHTSA), not EPA. If EPA is going to regulate greenhouse gases, it will have to work with NHTSA to craft rules that do not conflict.
But that’s not the biggest problem. If EPA makes an “endangerment finding,” determining that carbon dioxide and greenhouse gases “endanger public health and welfare,” other provisions of the Clean Air Act come in to play.
Section 111 of the Clean Air Act regulates stationary sources, such as power plants. The language in Section 111 is very similar to the language in Section 202–if a pollutant fits the description in Section 202, it will almost surely fit the description in Section 111. Section 111 regulates pollution if the emissions contribute “significantly” to air pollution. In other words, significant sources of emissions such as power plants would be regulated.
Section 108 of the Clean Air Act requires the EPA Administrator to create a list of criteria air pollutants that “may reasonably be anticipated to endanger public health or welfare.” Obviously if CO2 meets the requirements of Section 202, it will have to be regulated under Section 108.
Once a pollutant is listed under Section 108, EPA is required under Section 109 to establish National Ambient Air Quality Standards (NAAQS) for the pollutant. And Section 110 requires states to develop State Implementation Plans for metropolitan areas to meet the standard.
This is where defining carbon dioxide as a pollutant really comes off the rails. Greenhouse gases are well mixed in the atmosphere. The ambient levels of greenhouse gases near Des Moines, Iowa are more influenced by emissions from China than they are from emissions near Des Moines. Yet Des Moines be required to reduce ambient greenhouse gas levels. Doing so in Des Moines would be impossible, as China’s greenhouse gas emissions are increasing at a very rapid rate.
The Path Forward
Environmentalists would love to have the Bush Administration be the first administration to find carbon dioxide endangers health and welfare. This would be a terrible outcome, as it would give cover for a future Democratic administration to tighten emissions standards to unworkable levels.
It would also be a terrible outcome because there is no logical endpoint other than zero greenhouse gas emissions–and even a zero emissions standard in the U.S. wouldn’t control rising greenhouse gas emissions in other countries.
At the American Legislative Exchange Council, my colleagues and I are working on a resolution in opposition to EPA’s regulation of greenhouse gases from mobile sources. We invite your help with that effort.
Please talk with your Congressional delegation. If EPA starts down this path, Congress will be forced to step in to make some sense of the Supreme Court’s mangling of the Clean Air Act.
Greenhouse gases do not necessarily cause the harms the Supreme Court states, and there truly is great scientific uncertainty about climate change. But the Bush Administration needs to hear that.
Daniel Simmons, J.D. ([email protected]) is director of the Natural Resources Task Force at the American Legislative Exchange Council.
1 See e.g., Johnathan H. Adler, “Warming Up to Climate Change Litigation,” 93 Va. L. Rev. In Brief 61 (2007), http://www.virginialawreview.org/inbrief/2007/05/21/adler.pdf.
