Carbon Dioxide and the Clean Air Act

• Author: Eric Schwartz
• Position: A.B., Engineering Sciences
• Pages: 779-817

Page 779

A.B., Engineering Sciences. Dartmouth College, Spring 1996; J.D., Benjamin N. Cardozo School of Law, Spring 2006. The author would like to thank the entire staff of the journal, but particularly the executive board, whose tireless effort made this note possible.

Introduction

A Context of the Issue

In 1999, the International Center for Technical Assessment ("ICTA") filed a petition with the Environmental Protection Agency ("EPA") in an effort to compel the agency to regulate greenhouse gas ("GHG") emissions from new motor vehicles.¹ Four years later, the General Counsel for the EPA issued a memorandum declaring that the Clean Air Act ("CAA") did not grant jurisdiction over GHG emissions and, therefore, the agency was precluded from regulating them.²This memorandum, written in direct response to ICTA's petition, contradicted prior statements made by the agency.³In September 2003, not long after the General Counsel expressed its opinion, the EPA formally rejected the petition, largely basing its decision on the memorandum.⁴The agency's action had far-reaching implications, for the states as wellPage 780 as the federal government; even California's new, more stringent emission standards for motor vehicles were potentially affected.⁵

ICTA, in combination with several other environmental organizations, challenged EPA's ruling in the D.C. Circuit Court.⁶California, along with ten other states, two cities, and several environmental organizations, also filed protests against the ruling.⁷The D.C. Circuit consolidated the two challenges and considered the case under the name Commonwealth of Massachusetts v. EPA⁸In July 2005, a deeply-divided three-judge panel upheld the agency's decision.⁹

B Global Warming

Greenhouse gases get their name because they trap the sun's heat just like the glass in a greenhouse.¹⁰Thirty percent of the sun's radiation reflects off the surface of the earth and off the atmosphere; the rest is absorbed by the planet.¹¹In order to maintain the Earth's temperature, however, the heat from the sun's radiation must eventually escape back into space.¹²Certain gases, such as Carbon Dioxide ("CO2") and methane, interfere with this process by reflecting heat back to the surface of the planet.¹³The extra energy trapped within the atmosphere then raises the planet's temperature.¹⁴Page 781

Carbon dioxide is the most influential of the greenhouse gases.¹⁵Billions of tons of carbon are annually released into the atmosphere from activities such as burning fossil fuels.¹⁶The U.S. is responsible for one-fifth of the world's CO2 emissions despite its five percent share of the world population.¹⁷Scientists have reached a consensus that anthropogenic emissions of carbon dioxide - those generated by human activity - do in fact contribute to climate change; the Office of Technology Assessment estimates the Earth has warmed by O.450 C in the past 100 years, and will warm by an additional 1º C by 2030.¹⁸The scientific community, however, is less unified on the ultimate severity of the warming and what the environmental impact will be.¹⁹Some foresee conditions akin to a nuclear winter; others predict a climate that is actually more hospitable to human life.²⁰The Office of Technology Assessment addressed the situation diplomatically, stating:

We appear to be pushing the climate system beyond the limits of natural rates of change experienced by the Earth for hundreds of thousands and probably millions of years. The projected rate of climate change may outpace the ability of natural and human systems to adapt in some areas .... The IPCC estimates that stabilizing trace gas concentrations at current (perturbed) levels would require an immediate 60-percent reduction in carbon dioxide emissions . . . .²¹Page 782

Governments around the world have taken notice of the problem, but the U.S. remains, for the most part, on the "sideline."²²

C A Brief History of the CAA

Air pollution is a relatively recent problem. Though not entirely unique to post-industrial society,²³the Industrial Revolution brought the issue to the fore - factories and new modes of transportation, like railroads and automobiles, emitted air pollutants on an unprecedented scale.²⁴In the U.S., regulation of air pollution was left entirely to the states until Congress passed the Air Pollution Control, Research and Technical Assistance Act of 1955.²⁵This initial attempt at oversight focused more on providing support to the states' efforts than on implementing a national regulatory scheme,²⁶but over the ensuing years, the federal government gradually tended toward a more comprehensive regulation. In 1963, Congress passed the Clean Air Act,²⁷giving the federal government its first active role in air pollution control.²⁸An amendment passed in 1967²⁹set forth the first "comprehensive air pollution control legislation" to include significant federal regulatory authority.³⁰

It was not until the passage of the Clean Air Act Amendments of 1970³¹and 1977,³²however, that the federal government emerged as a strong and effective player. The amendments granted the authority toPage 783 regulate air pollution to the newly created EPA and laid the foundation of the regulatory scheme that is still in use today.³³The scheme required the federal government to establish National Ambient Air Quality Standards ("NAAQS") for pollutants that adversely affected public health or welfare.³⁴It required states to submit a State Implementation Plan ("SIP") for "the implementation, attainment, maintenance, and enforcement of the standards" established by the federal government.³⁵Thus, though the federal government set the goals, the states retained a major role in reaching those goals.³⁶The amendments also included special requirements for regions that did not meet the required standards, for newly constructed sources of air pollutants, and for preventing deterioration of air quality in regions that already met or exceeded the federal requirements (particularly to prevent regions that could not meet the air quality standards from simply exporting their pollution to regions that had clean air).³⁷The 1990 amendments³⁸built on this framework without modifying the core statutory provisions. For instance, Congress dramatically increased the number of chemicals qualifying as "air toxics," made the emissions requirements for vehicles more stringent, created provisions for dealing with stratospheric ozone, and introduced a permit system for stationary sources, such as factories.³⁹Page 784

D Whether to Regulate Greenhouse Gases?

In 1998, Congress requested the EPA's opinion on whether the agency had authority to regulate greenhouse gases, including CO2.⁴⁰At that time, the EPA's position was that it did possess such authority, and it produced a memorandum to that effect.⁴¹The agency's stance flowed from the Clean Air Act's broad definition of pollutants. According to section 302(g):

The term 'air pollutant' means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term 'air pollutant' is used.⁴²

Since CO2 was a chemical emitted into the air, the General Counsel declared that CO2 was an air pollutant as defined by the CAA.⁴³The memorandum suggested that, since CO2 was a pollutant, the CAA authorized the EPA to regulate the greenhouse gas if the agency determined that "emissions [were] reasonably anticipated to cause or contribute to adverse effects on public health, welfare, or the environment."⁴⁴

In 2003, the EPA shifted course. The agency's General Counsel released a new opinion, formulated in response to the ICTA petition,⁴⁵which held that CO2 did not qualify as a pollutant under the CAA.⁴⁶According to the memorandum, despite the broad language in section 302(g), the absence of a statutory scheme for dealing adequately with

Vanderver, supra note 23, at 201 (as of the 1990 Amendments). Section 108 covers air pollutants from "numerous and diverse mobile or stationary sources" that "endanger public heath or welfare." Clean Air Act § 108(a)(1), ⁴⁷U.S.C.S. § 7408(a)(1) (LEXIS through 2006).Page 785

CO2, and the application of statutory interpretation techniques described by the Supreme Court in FDA v. Brown & Williamson⁴⁷ ("Brown & Williamson') prohibited the EPA from regulating CO2.⁴⁸The General Counsel set forth several arguments. First, the CAA contained provisions that called for studies of climate change, but never explicitly endorsed regulation.⁴⁹Second, the nature of greenhouse gas emissions prevented effective regulation under the current provisions of the CAA.⁵⁰Congress designed the CAA as a remedy for local concentrations of pollutants. By contrast, CO2 diffused evenly throughout the atmosphere and the level of CO2 in any part of the world was dependent on the worldwide production of CO2. Therefore, the entire world would either be "in compliance or out of compliance."⁵¹Third, Congress passed several acts requiring further study of climate change, but rejected several bills calling for regulation of greenhouse gas emissions.⁵²Finally, the General Counsel compared the EPA's relationship...