Public Policy Groups Oppose Congress Pressuring EPA

Published April 1, 2008

The Competitive Enterprise Institute and a coalition of more than a dozen other public policy groups wrote to Sen. Dianne Feinstein (D-CA) to register their concerns about Feinstein’s stated intent to press EPA to list carbon dioxide as a pollutant under the Clean Air Act.

The following is the full text of that letter.

February 20, 2008

The Honorable Dianne Feinstein
331 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Feinstein:

We write to share our concerns about your January 25, 2008 letter to Environmental Protection Agency (EPA) Administrator Stephen L. Johnson. Like the plaintiffs in the Supreme Court global warming case (Massachusetts v. EPA, April 2, 2007), you apparently want EPA to issue a finding, under Section 202 of the Clean Air Act (CAA), that carbon dioxide (CO2) emissions endanger public health and welfare–the prerequisite for EPA to establish first-ever CO2 emission standards for new cars and trucks. We believe an endangerment finding would have disastrous consequences for the economy, environmental protection, and the political process.

Although Section 202 applies only to new motor vehicles, an endangerment finding would also make CO2 a pollutant “subject to regulation” under the CAA’s Prevention of Significant Deterioration (PSD) program, which regulates emissions from stationary sources.

Under the CAA, no new or existing “major” stationary source of a regulated pollutant may be built or modified (if the modification increases emissions) unless the source first obtains a PSD permit. A source is defined as “major” if it is either in one of 28 listed industrial categories and emits at least 100 tons per year of an air pollutant, or is any other type of establishment and emits at least 250 tons per year. Two hundred and fifty tons may be a reasonable regulatory threshold for smog- and soot-forming emissions. It is a minuscule quantity of CO2–roughly the amount emitted each year by a mid-sized commercial building that uses fossil fuels for heating.

A PSD permit can take years and hundreds of thousands to millions of dollars to obtain. In their November 8, 2007 testimony before the House Government Reform and Oversight Committee, attorneys Peter Glaser and John Cline state that, “No small business requiring a moderate-sized building or facility heated with fossil fuel could operate subject to the PSD permit administrative burden.”

PSD permitting is time-consuming because, to obtain a permit, a regulated entity must install “best available control technology,” and BACT determinations are made on a case-by-case basis. However, nobody knows yet what BACT for CO2 entails. Glaser and Cline caution that applying BACT to CO2 would create “considerable, and perhaps fatal, uncertainty for businesses.” They explain: “Since BACT determinations for CO2 have no regulatory history at this time, and can vary by type of facility and from state-to-state, businesses wishing to construct new sources or modify existing ones would have no basis for planning what the regulatory requirements will be.” In a December 12, 2007 letter to Congress, the Chamber of Commerce and 18 other trade associations warn that extending PSD to CO2–the unavoidable consequence of an endangerment finding–could bring construction activities “to a screeching halt.”

The likely environmental repercussions are equally unsavory. Once EPA and its state-level counterparts start making BACT determinations for CO2, they would be flooded with permit applications from potentially hundreds of thousands of “major” stationary sources. Environmental agencies would be forced to squander their administrative resources pursuing inconsequential CO2 reductions to the neglect of more critical, statutorily required CAA responsibilities.

An endangerment finding could also compel EPA to initiate a National Ambient Air Quality Standards (NAAQS) rulemaking for CO2. Under the NAAQS program, EPA must reduce atmospheric concentrations of the targeted pollutant to a level that protects public health and welfare with an “adequate margin of safety.” Plaintiffs in Mass v. EPA argued that current CO2 levels already harm public health and welfare. What would it take to actually lower CO2 levels? The Kyoto Protocol would barely slow the increase in CO2 concentrations. Even outright de-industrialization of the United States might not be enough to decrease CO2 levels. Establish NAAQS for CO2, and there is in principle no limit to the economic sacrifices that could be demanded of the American people.

Congress never intended for Section 202, which deals solely with motor vehicle emissions, to instigate a massive expansion of stationary source regulation, much less to depress the construction industry. Congress also did not intend for Section 202 to spawn an administratively crippling paperwork nightmare for EPA and its state-level counterparts. Nor did Congress intend for Section 202, which requires EPA to consider compliance costs when setting tailpipe emission standards, to leverage money-is-no-object regulation under the NAAQS program.

Above all, Congress never intended for Section 202 to allow litigants and courts to usurp legislative power and set climate policy for the nation. Yet the regulatory cascade triggered by an endangerment finding could subject the U.S. economy to the equivalent of a dozen Kyoto Protocols without Congress ever voting on it.

Two questions leap to our minds. In light of the economic, administrative, and constitutional perils outlined above, do you still intend to press EPA to make an endangerment finding? If so, are you willing to accept responsibility for the ensuing regulatory cascade, administrative morass, and economic burdens?

If you disagree with our analysis of the ramifications of an endangerment finding, we would appreciate hearing your reasoning. If you think our assessment has merit, then we respectfully urge you to reconsider your position.


Fred L. Smith, Jr., President
Marlo Lewis, Senior Fellow
Competitive Enterprise Institute

Sally Pipes
President and CEO
Pacific Research Institute for Public Policy

Duane Parde
National Taxpayers Union

Matt Kibbe
President and CEO
Freedom Works

Paul K. Driessen
Senior Policy Advisor
Congress of Racial Equality

Thomas Schatz
Council for Citizens Against Government Waste

George Landrith
American Environmental Coalition

Lewis K. Uhler
Founder and President
National Tax Limitation Committee

Grover Norquist
Americans for Tax Reform

David Keene
American Conservative Union

Dan Simmons
Natural Resources Director
American Legislative Exchange Council

Honorable Malcolm Wallop
Frontiers of Freedom

Jim Martin
60 Plus Association

Terry Scanlon
Capital Research Center

Kelsey Zahourek
Executive Director
Property Rights Alliance

Cliff Kincaid
America’s Survival, Inc.

Dr. William Greene

Hon. John Dingell
Hon. Joe Barton
Hon. Pete V. Domenici
Hon. James Inhofe
Hon. Thad Cochran
Hon. George V. Voinovich
Hon. Christopher S. Bond
Hon. Fred Upton
Hon. Rick Boucher
Hon. Samuel W. Bodman
Hon. Joshua Bolten
Hon. Edward Lazear
Hon. Joel Kaplan
Hon. James Connaughton
Hon. James Allen Nussle
Hon. Karl Zinsmeister
Hon. Fred Fielding
Hon. Allan Hubbard