§ 5. Legislative Proposals § 5. Legislative Proposals

• Jurisdiction: United States

§ 5. Legislative Proposals

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Massachusetts v. EPA is not the first time the Supreme Court judicially legislated to force EPA to develop a new CAA regulatory program that was not part of the statute as enacted by Congress. In 1972 the Sierra Club sued EPA to prevent the deterioration of clean air, basing its claim on CAA section 101, which includes, as one of the Act's four objectives the need to "protect and enhance" the quality of the nation's air. Federal District Court Judge John Pratt issued a four page opinion requiring EPA to prevent the air in attainment areas from deteriorating to bare compliance with the national ambient air quality standards (NAAQS).¹¹⁸ The case was affirmed by both the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court, but neither decision included an opinion.¹¹⁹ Thus, a new program was required to be developed based on a short federal district court opinion that provided little guidance to EPA. EPA responded to this judicial mandate by promulgating Prevention of Significant Deterioration (PSD) regulations on December 5, 1974.¹²⁰ These regulations were challenged, in Sierra Club v. EPA,¹²¹ but the litigation eventually was mooted by the CAA Amendments of 1977, which in sections 160-169A provide a statutory basis for the PSD program.¹²²

In the 105^th Congress (1997-1998) seven bills were introduced dealing with climate change and, in each succeeding Congress interest in climate change legislation intensified. In the 109th Congress (2005-2006) 106 bills, resolutions and amendments were introduced that related to climate change.¹²³ No consensus existed to create programs with enforceable requirements, but a bipartisan consensus appeared to be developing concerning measures to require reporting and disclosure of GHG emissions, protection for companies making early reductions, and for funding carbon sequestration research and development. The major GHG bill with substance has been the Climate Stewardship Act (a.k.a. the McCain-Lieberman bill). It was introduced in January 2003, as S. 139, but failed to pass by. The bill was opposed by the chair of the Environment and Public Works Committee, Sen. James Inhofe (R-OK) and by President George W. Bush because of its perceived adverse effects on jobs and the economy and because it was considered a first step toward a far more stringent regulatory regime. On February 10, 2005, the bill was reintroduced as S. 342. It provided for a system of GHG tradable allowances with emission caps. On May 26, 2005, Senators John McCain and Joseph Lieberman introduced a modified version of their climate change bill called the Climate Stewardship and Innovation Act (S. 1151). This third version of the bill continued to seek a reduction in CO₂ emissions to 2000 levels by 2010 through a regulatory program to be promulgated by EPA that would apply to GHG emissions from electric generators and to the transportation, industrial and commercial sectors. The major change in the

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bill was that it allowed revenues generated by the trading program to be used to develop...