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
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
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/
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