Hazy Skies in America's Future?: The Battle Between 'Free Industry' and Clean Air

• Author: Oded Cedar
• Position: J.D. Candidate, May 2012, at American University Washington College of Law
• Pages: 37-37

SUSTAINABLE DEVELOPMENT LAW & POLICY37

A

series of Republican-supported bills in the 112th Con-

gress are aimed at preventing the Environmental Pro-

tection Agency (“EPA”) from regulating the heaviest

polluting industries in America.1 At the forefront is H.R. 97—

short-titled the Free Industry Act—a bill introduced by Rep.

Marsha Blackburn (R-TN) and sponsored by 120 other repre-

sentatives.2 H.R. 97 would amend the Clean Air Act (“CAA”)

to exclude a series of greenhouse gases (“GHG”) from the list

of pollutants that the EPA can regulate.3 Media sources have

already pointed out that H.R. 97 will likely die in the Senate or

by Presidential veto.4 Regardless, H.R. 97 indicates an agenda to

impede EPA regulatory authority that could rise to the forefront

should Republicans take control of Congress.5 The philosophy

that undergirds H.R. 97 represents a paralytic force to U.S. cli-

mate change policy, and policymakers should begin drafting

solutions now before H.R. 97 and similar bills become a reality.

The CAA is a cornerstone of U.S. climate change policy,

and the EPA is the primary vehicle through which the federal

government enforces the provisions of the CAA.6 Congress

successively increased the EPA’s authority to regulate harm-

ful pollutants under the CAA with amendments in 19777 and

1990.8 GHG emissions entered the dialogue in 2007 when the

Supreme Court decided Massachusetts v. EPA, mandating that

the EPA had the authority to regulate GHG emissions pursu-

ant to the CAA.9 In 2009, the EPA issued an Endangerment

Finding, stating that GHG emissions posed a serious health risk

for the population and environment.10 With the support of the

Obama Administration, the EPA declared that it would pursue

new regulations for mobile and stationary sources.11 It is against

this backdrop that Republicans in the 112th Congress levy their

attacks against the EPA.

Supporters of H.R. 97 (“97’ers”) wish to strip the EPA of

its regulatory authority because they claim that stricter GHG

standards will “kill” American industrial jobs.12 The 97’ers f‌irst

argue that the detrimental effects of GHG emissions are uncer-

tain and require more research before the EPA can move to

regulate those emissions.13 The argument continues that stricter

regulations will force companies to expend money installing

new equipment and put American jobs at risk.14 There is evi-

dence that lends credence to the 97’ers’ economic argument, but

most of it comes from industry-led reports.15

The two largest stationary sources of GHG emissions

are the electric power industry (oil, natural gas, and coal) and

manufacturing, producing an estimated 51.3% of U.S. GHG

emissions in 2007.16 The oil and natural gas industries directly

employ roughly two million people,17 coal employs about ninety

HAZY SKIES IN AMERICA’S FUTURE?:

THE BATTLE BETWEEN “FREE INDUSTRY” AND CLEAN AIR

by Oded Cedar*

* Oded Cedar is a J.D. Candidate, May 2012, at American University Washington

College of Law.

thousand,18 and manufacturing employs around twelve million

people.19 With more than fourteen million people employed by

these industries (not including “supporting” industries),20 it is

reasonable to assume that new regulations could cause poten-

tial job losses. However, the 97’ers’ argument fails to consider

the potential for job creation resulting from new technology and

programs required to comply with these regulations.21 Instead,

H.R. 97 proposes an extreme political maneuver that threatens to

dismantle the core of U.S. climate change policy.

By eliminating EPA’s authority to regulate GHG, H.R.

97 unleashes a host of consequences. Without the EPA as the

regulatory authority, state governments will have the choice, or

obligation, to regulate GHG emissions. This means a patchwork

of regulations from state to state instead of one uniform federal

standard.22 Companies who wish to escape GHG regulations

may decide to move to states without emissions standards.23

Also, without GHG regulations, it is unlikely that industrial

companies will invest in “clean tech,” only further delaying U.S.

entrance into a growing global marketplace with $7.8 billion in

investment in 2010.24 Finally, there is no way to measure how

much credibility the U.S. will lose in the international climate

change dialogue without an effective policy in place.25

H.R. 97 is part of a broader Republican plan to dismantle the

EPA.26 The bills presented in the 112th Congress bear an eerie

resemblance to bills presented by Republicans during the 111th

legislative session.27 To assume that Republicans will not present

these bills in the 113th Congress would be foolish. Policymakers

who favor a strong climate change policy must take aff‌irmative

steps to entrench the EPA’s authority to regulate GHG emissions.

Amending the CAA or passing an authorization bill would be two

ways of accomplishing this goal.28 Although the political distribu-

tion of the 112th Congress is unlikely to allow the entrenchment

efforts to succeed, it could provide a rally-point for all those in the

public who stand against H.R. 97.

Endnotes: Hazy Skies in America's Future?

1 See Anti-Regulatory Forces Launch Full Assault on Public Protections,

OMB WATCH (Feb. 8, 2011), http://www.ombwatch.org/node/11485; see also

Dina Cappiello, House Republicans Propose $1.9 Billion Cut to EPA, ASSOC.

PRESS (Feb. 9, 2011, 3:58 PM), http://www.huff‌ingtonpost.com/2011/02/09/

house-republicans-move-fo_n_820911.html.

2 See H.R. 97 – Free Industry Act, OPEN CONGRESS, http://www.opencongress.

org/bill/112-h97/show (last visited Feb. 12, 2011).

Endnotes: Hazy Skies in America's Future? continued on page 85