A game of climate chicken: can EPA regulate greenhouse gases before nthe U.S. Senate ratifies the Kyoto Protocol?

Author:Bugnion, Veronique

    In the face of strong opposition to ratification of the Kyoto Protocol,(1) the United States Environmental Protection Agency (EPA) has indicated a willingness to use existing provisions of the Clean Air Act (CAA)(2) to promulgate and enforce regulations that would enact standards addressed by the Kyoto agreements. EPA has suggested that the section 302(g) definition of "air pollutant" includes greenhouse gas emissions, but it has not indicated which provisions of the CAA it would use to regulate emissions of these gases. Seemingly, EPA could use sections 108, 109, 112, 115, 202, and Title VI in order to regulate those emissions. However, any intimation by EPA that it might extend its regulatory authority to include greenhouse gas emissions raises opposition. Conservative politicians and their allies who oppose ratification of the Kyoto Protocol cite treaty law to assert their position that EPA cannot so extend its authority.(3) These opponents contend that, in the absence of language in the Protocol authorizing provisional implementation of its terms, EPA's proposal to regulate greenhouse gases is illegal.

    This Article addresses the issue of whether EPA has the authority under the CAA to regulate pollutants that are widely, but not universally, believed to lead to harmful climate change. In assessing this issue, the article examines several key questions:

    * Can the Administration implement the Kyoto Protocol without Senate ratification?

    * Do any specific provisions of the CAA grant EPA the authority to regulate greenhouse gases at any level?

    * What instruments are available to carry out such regulations?

    * Apart from promulgating regulations, what actions can EPA take in the absence of further legislation from Congress?

    Ultimately, the resolution of these issues depends on the central questions of law arising from the CAA's regulatory provisions, but those difficult legal questions will be resolved within, or alongside, an equally difficult set of political issues. Part H describes the political context within which this controversy arises. Part HI reviews the legal basis for any attempt to carry out commitments made in Kyoto prior to Senate ratification of the Protocol. Part IV reviews the various sections of the CAA that EPA might invoke in order to regulate greenhouse gases. Part V discusses EPA's authority to devise a market-based approach to regulating greenhouse gases. Part VI examines the reasonableness of EPA's market-based strategy in light of Congress's continuing authorization, which allows or requires EPA to carry out research programs and cooperative, voluntary efforts with industry in order to reduce pollution. Part VII highlights the fact that the debate over regulating carbon dioxide ([CO.sub.2]) and other greenhouse gases is not only a legal question but also a political one.

    Any successful voluntary or regulatory program to reduce greenhouse gases will move the United States toward meeting the obligations enumerated in the Kyoto Protocol--not only in advance of Senate ratification, but against opposition that makes ratification, at best, doubtful. Although the CAA appears to offer some justification for EPA's contemplated actions,(4) it is necessary to recognize the fundamental differences between domestic environmental regulation and provisions that result from an international agreement--especially one that arose out of heated negotiations resulting in a difficult compromise among the original positions of the United States, the European Union, and Japan. Because of these differences, efforts to prevent EPA from carrying out the terms of the Kyoto Protocol must not interfere with the evolution of programs to reduce greenhouse gas emissions in the United States that have received widespread, bipartisan support.


    Opponents of curbs on U.S. greenhouse gas emissions have expressed alarm that the Clinton Administration is attempting to devise domestic regulations without seeking new legislation or to meet its international commitments without waiting for ratification of the recent Kyoto Protocol by the Senate.(5) Such opposition raises a legally, politically, economically, and scientifically controversial question: can EPA use its existing authority under the CAA to regulate pollutants that are widely believed to affect climate change? Although the legal basis is tenuous, advocates of aggressive regulation within the Administration have not ruled out the use of existing provisions of the CAA to control [CO.sub.2] and other greenhouse gases.(6) In response, political opponents have balked at the proposition that EPA's authority is sufficiently expansive to undertake such regulation. Moreover, even establishing the legality of such actions would seem unlikely to change the perception that such a course would be politically imprudent.

    A number of positive steps could be taken in the short term to reduce the long-term danger of possible anthropogenic climate change. Instead, the dispute between Congress and the Administration has threatened educational programs, a voluntary crediting program for early action, pilot emissions trading programs, voluntary energy-efficiency programs, and even basic climate change research.(7) The absence of clear legislative authority provides opponents of climate change regulation a justification to oppose any program that proposes to mitigate climate change. Consequently, a shaky stalemate has emerged between opponents and proponents of climate change regulations. Two questions are central to the debate: what is the legal basis for regulating greenhouse gases under the Clean Air Act, and, more speculatively, why has the Administration pursued the course of regulating without congressional approval?

    Questions of domestic law and politics arise within the context of United Nations-sponsored negotiations that attempt to mitigate potential human-induced climate change. At the Third Conference of the Parties (COP-3) to the United Nations Framework Convention on Climate Change, held in Kyoto in December 1997, the participating nations agreed to reduce their emissions of carbon dioxide and other greenhouse gases at least 5% below 1990 levels by 2008-2012.(8) The United States has agreed to a 7% reduction, while the European Union has agreed to an 8% reduction, and Japan has agreed to a 6% reduction.(9) If ratified, the Kyoto Protocol will commit these nations not only to legally binding restrictions, which would be carried out via domestic regulations, but also to the Kyoto Protocol's provisions for international cooperation.(10) The Kyoto Protocol significantly tightens the restrictions created by the 1992 Framework Convention on Climate Change, which the United States has signed and ratified.(11)

    Few are optimistic about whether the United States will ratify the Kyoto Protocol.(12) Prior to COP-3, the U.S. Senate unanimously passed the Byrd-Hagel Resolution, expressing the Senate's sentiment that

    [t]he United States should not be a signatory to any protocol ... which would --(A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period, or (B) would result in serious harm to the economy of the United States.(13) Although the Byrd-Hagel Resolution was not binding--as there is no agreement on what would constitute a sufficient commitment by developing countries or on what would constitute "serious harm to the economy"--the resolution reflects broad bipartisan agreement on the need for commitments from developing countries and for keeping costs as low as possible by using economic instruments.(14) A ratification vote probably will not occur until well beyond the 2000 election in the United States.(15)

    The Administration's position on the intent of the Byrd-Hagel Resolution indicates its first point of disagreement with the Senate. In the wake of COP-3, the Administration began lobbying for commitments from developing countries.(16) Nevertheless, it pledged unconditionally to sign the agreement during the one-year period that the Protocol was open for signature.(17) By contrast, the Senate's Byrd-Hagel Resolution explicitly asks that the treaty not be signed unless the condition on developing country participation is met.(18) When the United States signed the Protocol on November 12, 1998, during the Fourth Conference of the Parties in Buenos Aires,(19) Senators opposed to the treaty immediately called for a quick vote on ratification.(20) However, the Administration has clearly expressed its unwillingness to conduct such a vote. Other opponents have tied demands to submit the Protocol for ratification--and hence defeat--to other Administration priorities, such as ratification of the Comprehensive Test Ban Treaty.(21) Faced with overwhelming opposition to the Protocol from the Republican majority and lukewarm support from the Democratic minority in the 105th and 106th Congresses, the Administration delayed the submission of the Protocol to the Senate for ratification by first seeking to fulfill the conditions of the Byrd-Hagel Resolution.(22) In the period between the signing of the Protocol and its submission to the Senate for ratification, any actions taken by the Administration that seem to implement the Kyoto Protocol, whether real or hypothetical, have become controversial.(23) To allay these concerns, Stuart Eizenstat insisted that the Administration had "no intention, by executive fiat, of going around the Senate's constitutional prerogatives--absolutely none."(24)

    Since the beginning of the Berlin Mandate negotiations, which led to the Kyoto Protocol, the United States has argued aggressively for new forms of commitment from developing countries and for the inclusion of economic instruments in the Protocol--especially...

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