Carbon dioxide: our newest pollutant.

Author:Epstein, Richard A.

    It was my great pleasure to come to Suffolk University Law School to join the ranks of the many distinguished individuals who have delivered the Donahue Lecture. The topic of this lecture is the simple chemical, carbon dioxide, which is, now officially, our newest pollutant. The first question to ask is why I chose this particular title for carbon dioxide, a substance that predates the industrial revolution and is, in limited quantities at least, necessary for the survival of life as we know it on this planet. The answer relates to complexities that lie beyond my control under the peculiar statutory framework for dealing with pollutants under the Clean Air Act (CAA), which is administered by the Environmental Protection Agency (EPA). Pollutants must be registered under the CAA, and there has been a huge dispute--which I shall explain later on--about whether or not carbon dioxide should be registered as such under the Act. (2) After much internal debate, the Bush Administration said no. The states, led by Massachusetts, thought that the answer ought to have been yes. They forced the issue to the Supreme Court, which held in Massachusetts v. EPA (3) that, although the EPA was not necessarily bound to make that "endangerment" determination, it was nonetheless authorized to do so because carbon dioxide fell within the CAA's definition of an "air pollutant." (4) Under the CAA, an "air pollutant" is "any physical [or] chemical ... substance or matter which is emitted into or otherwise enters the ambient air." (5)

    In a world of small coincidences, one of my former students, Liza Heinzerling, has played an active role in this debate. She was a lead author of the plaintiff's brief in Massachusetts v. EPA, and is now a key member of the Obama Administration's climate change team at the EPA. (6) Lo and behold, the position of the Bush Administration has been reversed as Lisa Jackson, the head of the EPA, has made an endangerment finding on carbon dioxide, as well as five other greenhouse gases (GHGs)--methane (C[H.sub.4]), nitrous oxide ([N.sub.2]O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (H[F.sub.6]). This finding has paved the way for their regulation under the CAA, which imposes extensive regulatory schemes on emissions from both stationary and moving sources. (7) The people who once litigated from the outside, through law schools and environmental organizations, have now become insiders, who in their new roles, have chosen to make the findings the Supreme Court allowed them to make in Massachusetts v. EPA.

    The consequences of making an endangerment finding for a new pollutant are not trivial. That designation triggers a complicated set of obligations for both federal and state governments under the CAA. None of these new initiatives will be implemented without a struggle. Industry opposition to carbon dioxide regulation is fierce, and its lawyers have geared up for a fight to slow down this process under our creaky administrative procedures. In all likelihood, they will stall implementation by highlighting the multiple mismatches between the institutional arrangements set out under the CAA and any intelligent approach for dealing with GHGs--especially carbon dioxide. Make no mistake about it, carbon dioxide occupies a separate niche from the other five recently designated GHGs--all of which have long been recognized as pollutants under traditional statutory definition. For standard pollutants, it makes sense to seek to drive them as close to zero as is feasible. With carbon dioxide, this strategy is profoundly destructive to all living things.

    Given this starting point, it follows that when carbon dioxide becomes a pollutant necessarily depends upon the quantities of the gas found in the atmosphere. It is equally clear, however, that we cannot take a nonchalant "the more the merrier" position with respect to carbon dioxide, because excessive amounts of it could trigger a process with potentially--but not necessarily--negative consequences. For example, a high concentration of carbon dioxide in the atmosphere could trap sunlight from outer space beneath a canopy of greenhouse gasses, raising the temperature of the earth. The oft-recited nightmare scenario is that if temperatures rise to some as-yet-unknown threshold level, oceans would rise, ice caps would melt, malaria would spread, and humanity would face catastrophe. Yet as Bjorn Lomborg always reminds his readers, a fraction of the resources spent on staving off the long-term consequences of carbon dioxide could be put to good uses right now, such as reducing the scourge of malaria in undeveloped countries by cleaning up the water supply. (8) While it is easy to imagine some doomsday scenario, the more crucial question is what threshold concentration of carbon dioxide would trigger such catastrophic events. This question is similar to asking how much the oxygen supply on earth would have to dwindle before it would imperil human life. The battle then is about how much carbon dioxide should be allowed, not whether it should be allowed at all.

    Currently, all we can say with confidence is that some amount of carbon dioxide is too much, some amount is perfectly safe, and some too little. But just how does any one, either separately or collectively, decide exactly where to draw the line that separates these three categories? At times it is hard to distinguish what changes should be welcome, and which should be the source of general concern. Naturally, everyone would like to rely on climate scientists and neutral experts for a dispassionate analysis. A few years ago, the educated layperson might have accepted the benign establishment view that the world was closing in on the point of no return as high levels of GHGs threatened life as we know it. But, as of late, more and more experts are departing from this doomsday perspective, and their hesitancy continues to grow in light of the recent revelation that the once-renowned East Anglia Climate Research Unit (CRU) has engaged in a wide range of questionable practices that smell of data manipulation. (9) At the same time, many impassioned defenders of strong immediate action dismiss the escapades at the CRU as an insignificant aberration. (10)

    It is troubling that scientific thinking regarding carbon dioxide appears to follow political trends. Advocates of small government seem to have summarily dismissed the possibility that excessive carbon dioxide could pose real dangers. On the other hand, people who are comfortable with large government institutions--including a reenergized EPA--invariably characterize carbon dioxide as a known looming peril. Because the politics on this issue appear to drive the science rather than the other way around, it is helpful to ask if there is some reasonable middle ground between skepticism and alarmism for those who acknowledge the threat of excessive carbon dioxide but do not expect the world to end tomorrow. For such people, the most prudent course of action is one of watchful waiting, during which time it is critical to vigorously gather information about the level at which carbon dioxide poses a significant threat.

    How do we get a handle of the size of the peril? First, we can track the historical levels of carbon dioxide in parts per million, which, as of March 2009, stood at 387 parts per million. That number represents the result of a marked and steady increase in carbon dioxide, which has only intensified during the last decade. One recent report shows that the amount of GHGs entering the atmosphere increased from about 6,510 million metric tons in 1996 to about 8,230 million metric tons in 2006, an increase of approximately 26%. (11) Some portion of this increase is driven by industrialization. To some extent,


    Recall that each person exhales about a thousand pounds of carbon dioxide per year, which when multiplied by the 6.8 billion people alive today is 3.085 x 10 (9) metric tons, a significant amount, especially when the total amount of atmospheric carbon dioxide is estimated at 3.45 x [10.sup.12] metric tons. (One metric ton equals 1000 kilograms or 1.1023 short-or American-tons.) The increment from the year 2000 alone is equal to about 363,000,000 metric tons per year. Even more significantly, animals such as cows emit large quantities of methane, C[H.sub.4], one molecule of which has the same adverse environmental impact as twenty-one molecules of carbon dioxide. (13) When animals belch, they create major pollution problems for the world in the form of 100 million tons of methane gas per year. (14) These are not tiny numbers.

    The situation is driven in large part by the huge populations of China and India, each with well over one billion people and emerging economies, which will continue to generate more GHGs per person as they continue their rapid economic growth. They account for a combined 2.5 billion of the world's 6.8 billion people. Of these, China has about 1.334 billion people and India has about 1.174 billion people. The United States is a distant third place with about 308,000,000 people. While our emission levels per person are about three-fold greater than China's, China today produces about 1.3 times the amount of carbon dioxide that the United States does--with over four times the population. If China's output per person were to double, it would produce about 2.6 times as much carbon dioxide as the United States does today. Even if the United States were to cease all carbon dioxide emissions, the total of United States and China emissions would be 1.6 times its current size. This calculation differs only slightly if we replace China with India. The basic conclusion here is that the actions taken by China and India have far greater consequences for carbon dioxide levels than other countries.

    Nonetheless, it does not appear that either China or India is likely to do much...

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