January 22, 2010

Murkowski Proposal Shutters the Only Game in Town: The Clean Air Act

Senator Murkowski’s proposal to disapprove EPA’s scientifically and legally justified finding that greenhouse gases endanger the public health and welfare would strip the federal government of its primary legal mechanism for addressing catastrophic climate change. If Congress does not think the Clean Air Act (CAA) is the best mechanism for regulating greenhouse gases, it should pass legislation providing a better alternative, not gut the only law that currently applies to still-uncontrolled emissions.

As the Supreme Court found in Massachusetts v. EPA in 2007, greenhouse gases are clearly “air pollutants” as defined by the Clean Air Act. The CAA purposefully crafted a broad definition in order to empower EPA to respond to new threats as they emerge. EPA’s recent endangerment finding was the logical, legally required, and inevitable next step. The science is unassailable: greenhouse gas emissions pose a profound danger to the public health and welfare.

EPA’s endangerment finding was made in response to a petition for automobile emission standards, and the resolution to disapprove EPA’s finding would, technically, apply only in that context. Nonetheless, the writing is on the wall both at EPA and in Congress. EPA’s endangerment finding in the automobile emission context would apply equally to other sections of the Clean Air Act, including provisions that control new sources of pollution. And Sen. Murkowski would presumably move to disapprove any endangerment findings EPA made under these other sections.

The CAA may not be the perfect mechanism for addressing GHG emissions, but for now it is all we have. Under the CAA, EPA could continue to reduce automobile GHG emissions and could impose controls on new large sources of GHGs (pursuant to its proposed tailoring rule that would limit the CAA’s applicability to large sources). Given what we know of the risks of climate change, it is incomprehensible that this resolution could let new sources continue to ignore their GHG implications into the foreseeable future.

The resolution’s sponsors argue that CAA regulation would hurt the economy and cost jobs. Their view is short-sighted. Recent reports on the consequences of climate change reveal that the costs of inaction will far exceed the costs of action. The potential impacts on coastal cities, water supplies, agriculture, and human survival are chilling, and the costs of adapting to climate change are likely to be much higher than the cost of averting it. Federal action to address climate change is essential to reducing emissions and to motivating the rest of the world to do the same.

The resolution’s sponsors also suggest that “energy” legislation to encourage alternative energy and energy efficiency may be all that is necessary. Such legislation is necessary, but not sufficient. Without putting a price on carbon, either through regulatory requirements or through a cap-and-trade program, new energy technologies and energy efficiency cannot compete. Moreover, unless there is a price on carbon that gives alternatives a chance against existing fossil fuels, the United States will lose the “green technology” market to the rest of the world.

The argument that “cap-and-trade would be better” does not justify gutting the CAA before cap-and-trade legislation is in place. Passing this legislation only ties EPA’s hands, it does not advance a more constructive solution. In fact, it could further stall already-stalled efforts toward a more constructive solution. The threat of CAA regulation could induce industry to accept cap-and-trade legislation. In the absence of that threat, it is difficult to see why vested fossil fuel interests would ever come to the table.

While defending the advisability of regulatory approaches generally, I have argued before that the CAA is not the ideal mechanism for regulating GHGs. But the CAA is far better than the empty shell Sen. Murkowsi proposes.

Alice Kaswan, CPR Member Scholar; Professor, University of San Francisco School of Law. Bio.

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