Cap and Trade Under the Clean Air Act?: Rethinking §115

• Date: 01 September 2010

40 ELR 10894 ENVIRONMENTAL LAW REPORTER 9-2010

Cap and Trade

Under the Clean

Air Act?:

Rethinking §115

by Hannah Chang

Hannah Chang is a Fellow and Deputy Director of

Columbia Law School’s Center for Climate Change Law.

Editors’ Summary:

Section 115 of the CAA, addressing international air

pollution, has been widely dismissed as a viable avenue

for mitigation of GHGs because of a misplaced assump-

tion that NAAQS must be established for GHGs before

§115 authority can be exercised for GHGs. is Article

explores the statutory language and legislative history

of §115 to refute this conventional view, and argues that

§115 can play a role in facilitating the establishment of

a cap-and-trade program for GHGs without the estab-

lishment of NAAQS for GHGs.

As comprehensive climate legislation stagnates in the

U.S. Congress, the possibility of greenhouse gas

(GHG) regulation under the U.S. Environmental

Protection Agency’s (EPA’s) existing Clean Air Act (CAA)1

authority as the sole federal means of addressing climate

change becomes increasingly likely.2 Whether EPA has exist-

ing authority to implement a cap-and-trade program for

GHGs, which many believe is the cornerstone of an eec-

tive and ecient approach to controlling emissions, has as

yet no denitive ans wer. e various sections of the CAA

that could act as authority for such a program have their

own legal ambiguities and practical limitations.3 However,

one largely overlooked section—§115 on “International Air

Pollution”4—is potentially quite powerful in its implications

for the establishment of cap-and-trade under the CAA.

Upon a nding that pollution in the United States is caus-

ing or contributing to air pollution “which may reasonably

be anticipated to endanger public health or welfare in a for-

eign country” (or at the request of the Secretary of State who

alleges such pollution exists) and a reciprocity nding that

the aected foreign country gives the United States “essen-

tially the same rights with respect to the prevention or con-

trol of air pollution occurring in that country as is given that

country” by t he section, §115 authorizes EPA to order the

states in which emissions are occurring to revise their state

implementation plans (SIPs) to address the foreign endan-

germent.5 As explained in this Ar ticle, the requisite foreign

endangerment and reciprocity ndings can likely be made

for GHGs, and the issuance of a call for SIP revisions could

incentivize state action to mitigate GHGs t hrough a cap-

and-trade program without the burdensome EPA regulations

that many assume must be taken to exercise §115 authority.

Where §115 ha s not been completely overlooked due to

its historical lack of use, it has been dismissed as an option

for GHG regu lation because of assumptions that the sec-

tion may be implemented only if EPA establishes national

ambient air quality standards (NAAQS) for GHGs.6

1. 42 U.S.C. §§7401-7671q (2007), ELR S. CAA §§101-618.

2. A resolution proposed by Sen. Lisa Murkowski (R-Alaska) that would have

blocked EPA’s regulation of GHGs was rejected by a 53-47 vote in the U.S.

Senate on June 10, 2010. See Carl Hulse, Senate Rejects Republican Eort to

wart Carbon Limits, N.Y. T, June 10, 2010.

3. e three Clean Air Act (CAA) sections that have been most frequently cited

to provide authority for a cap-and-trade program are §111 (New Source Per-

formance Standards), Title VI (addressing stratospheric ozone protection), and

national ambient air quality standards (NAAQS) implemented through the

states. For a discussion of the various avenues and an evaluation of legality,

eectiveness, eciency, and fairness under each avenue, see I M. C-

  J A. S, I.  P I, T R A:

EPA’ O  O  R G G

(2009) [hereinafter T R A].

4. 42 U.S.C. §7415.

5. §7415.

6. A 2009 article by Roger Martella and Matthew Paulson is the single piece

of literature explicitly disclaiming the assumed connection between §115

and criteria pollutants. See Roger Martella & Matthew Paulson, 

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