Clean Air Act Section 115: Is the IPCC a 'Duly Constituted International Agency'?

• Author: Adam D. Orford
• Position: Assistant Professor, University of Georgia School of Law
• Pages: 215-273

Clean Air Act Section 115: Is the IPCC a “Duly

Constituted International Agency”?

ADAM D. ORFORD*

ABSTRACT

Does the Environmental Protection Agency’s (“EPA”) receipt of the

Assessment Reports of the Intergovernmental Panel on Climate Change

(IPCC) trigger the agency’s duties under Section 115 of the Clean Air

Act? The law requires EPA to take action to prevent or eliminate air pollu-

tion endangering the public health or welfare of foreign nationals under

certain circumstances. If triggered, the argument goes, the law could jus-

tify, or compel, EPA’s imposition of nationwide greenhouse gas regulation

to combat climate change. One way to do so is to trigger EPA’s duties

“upon receipt of reports, surveys or studies from any duly constituted

international agency.” This Article considers whether EPA could reason-

ably interpret the IPCC to qualify as such an entity, and concludes not, but

that a better candidate might exist.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

I. The Argument that the IPCC Is a “Duly Constituted International Agency” 219

II. The Ambiguous Plain Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

A. The Many Meanings Of “(International) Agency”. . . . . . . . . . . . . 225

B. “Duly Constituted” Vagaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

III. The Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

A. 1902–1946: Constituting The IJC . . . . . . . . . . . . . . . . . . . . . . . . . 231

1. 1902–1909: The Boundary Waters Treaty . . . . . . . . . . . . . . . 231

2. 1910–1912: Enabling Legislation and the Nature of the IJC . . 233

3. 1912–1928: The First Water Pollution Reference . . . . . . . . . . 235

4. 1928–1941: The First Air Pollution Reference . . . . . . . . . . . . 236

B. 1946–1963: The Postwar IJC and Early Federal Environmental Law . . . 238

1. 1944–1950: The Second Water Pollution Reference . . . . . . . . 238

2. 1949–1963: The Second Air Pollution Reference . . . . . . . . . . 239

3. 1963: Federal Abatement in the Clean Air Act . . . . . . . . . . . . 240

* Assistant Professor, University of Georgia School of Law. JD, MPP, PhD. The author wishes to

thank the participants at the CU Boulder workshop, and particularly Doug Kysar and Melissa Powers,

for their generous and perceptive comments and suggestions. © 2022, Adam Orford.

215

C. 1964–1967: Section 115 Enacted .. . . . . . . . . . . . . . . . . . . . . . . . 242

1. 1964–1965: The Purpose of the International Abatement

Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

2. 1965–1967: Post-Enactment Intentions and Delay . . . . . . . . . 248

D. 1965–1977: Section 115 Revised . . . . . . . . . . . . . . . . . . . . . . . . . 249

1. 1967: The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 250

2. 1970: The Second Amendment . . . . . . . . . . . . . . . . . . . . . . . 251

3. 1977: The Third Amendment . . . . . . . . . . . . . . . . . . . . . . . . 253

E. 1977–1990: Section 115 and Acid Rain . . . . . . . . . . . . . . . . . . . . 258

F. 1990–2009: Section 115 and Climate Change . . . . . . . . . . . . . . . . 263

IV. Is the IPCC A “Duly Constituted International Agency”? . . . . . . . . . . . . 270

Conclusion: Hope Springs Eternal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272

INTRODUCTION

Section 115 of the Clean Air Act (“Section 115”) requires the Environmental

Protection Agency (“EPA”), under certain conditions, to take regulatory action

against air pollution originating in the United States and endangering public

health or welfare in other countries.

1

Recently, several scholars have embraced

Section 115 as a potential solution to the United States’ long failure to respond to

climate change, arguing that this law could be used to justify, or compel, EPA’s

imposition of a nationwide regulatory program on greenhouse gas emissions.

2

But Section 115 is an odd law. Its language is complex and obscure, it is poorly

integrated into the rest of the Clean Air Act, and its legislative history is not well

1. Clean Air Act (“CAA”) § 115, 42 U.S.C. § 7415. The statute states in full:

International air pollution.

(a) Endangerment of public health or welfare in foreign countries from pollution emitted in United

States. Whenever [EPA], upon receipt of reports, surveys or studies from any duly constituted inter-

national agency has reason to believe that any air pollutant or pollutants emitted in the United

States cause or contribute to air pollution which may reasonably be anticipated to endanger public

health or welfare in a foreign country or whenever the Secretary of State requests [EPA] to do so

with respect to such pollution which the Secretary of State alleges is of such a nature, [EPA] shall

give formal notification thereof to the Governor of the State in which such emissions originate.

(b) Prevention or elimination of endangerment. The notice of [EPA] shall be deemed to be a find-

ing under [42 U.S.C. § 7410(a)(2)(H)(ii)] which requires a plan revision with respect to so

much of the applicable implementation plan as is inadequate to prevent or eliminate the endan-

germent referred to in subsection (a). Any foreign country so affected by such emission of pol-

lutant or pollutants shall be invited to appear at any public hearing associated with any revision

of the appropriate portion of the applicable implementation plan.

(c) Reciprocity. This section shall apply only to a foreign country which [EPA] determines has

given the United States essentially the same rights with respect to the prevention or control of

air pollution occurring in that country as is given that country by this section.

(d) Recommendations. Recommendations issued following any abatement conference conducted

prior to August 7, 1977, shall remain in effect with respect to any pollutant for which no

national ambient air quality standard has been established under [42 U.S.C. § 7409] unless

[EPA], after consultation with all agencies which were party to the conference, rescinds any

such recommendation on grounds of obsolescence.

2. Cf. materials examined infra Part I.

216 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 34:215

documented. Stranger still, although it was enacted in 1965, it has never

served as the foundation for a regulatory program. The powers it grants are

breathtakingly broad, and yet it contains so many conditions that it is diffi-

cult to imagine how it was intended to be used. One of those conditions is

the subject of this Article.

As relevant here, to trigger Section 115’s duties, three things must happen.

3

First, EPA must have “reason to believe that any air pollutant or pollutants emit-

ted in the United States cause or contribute to air pollution which may reasonably

be anticipated to endanger public health or welfare in a foreign country” (the

endangerment condition). Second, the foreign country in question must be one

that EPA “determines has given the United States essentially the same rights with

respect to the prevention or control of air pollution occurring in that country as is

given that country by” the United States via Section 115 (the reciprocity condi-

tion). Third, EPA’s endangerment finding must derive from EPA’s “receipt of

reports, surveys or studies from any duly constituted international agency” (the

international agency condition). Proponents of Section 115 have posited that

EPA’s receipt of the Assessment Reports of the Intergovernmental Panel on

Climate Change (“IPCC”) satisfies the international agency condition. That is,

they have argued that the IPCC is a “duly constituted international agency.” But

the logic underlying their claims to date has been weak. This Article, conse-

quently, undertakes to examine as carefully as possible whether the IPCC quali-

fies, requiring a detailed investigation into what Congress meant by that key,

undefined term.

Before proceeding, two initial caveats are in order. First, nothing in this Article

should be taken as opposition to national greenhouse gas regulation in the United

States. Quite the contrary: the United States Congress should have directed EPA

to regulate greenhouse gas emissions long ago. But legal arguments formulated

to circumvent Congress, if actually pursued, will face challenges brought by

powerful and sophisticated litigants. It would make little sense to encourage the

federal government to build a national regulatory program on a legal basis that

cannot survive a hostile response. Indeed, it would be counterproductive, as the

time and resources devoted to the cause would provide Congress with further

excuses for delay while the matter worked its way through the courts, and divert

limited EPA resources away from developing, implementing, and defending

3. Section 115 also contemplates initiation via request by the Secretary of State. 42 U.S.C. § 7415(a).

However, there are several serious ambiguities in this language, the analysis of which is beyond the

scope of this Article. They include the requisite basis for such a request from the Secretary of State (also

reports, etc., from a duly constituted international agency, or elsewhere?); the requisite nature of the

Secretary’s request to EPA (to make the requisite endangerment finding, or to initiate implementation

plan revisions under section 115(b)?); the requisite content of the Secretary’s allegation (that certain

pollution may reasonably be anticipated to endanger public health or welfare in a foreign country, or

actually does so, or that the source is in the United States, or something else?); the administrative

prerequisites of such a request (is it subject to notice and comment?); and whether such a request could

subsequently be revoked. See 42 U.S.C. §§ 7415(a), 7415(b).

2022] CLEAN AIR ACT SECTION 115 217