Heat expands all things: the proliferation of greenhouse gas regulation under the Obama administration.

• Author: Adler, Jonathan H.

During his campaign for the White House, Barack Obama called for decisive action to address the threat of global climate change. Specifically, then-Senator Obama called for reducing, by 2050, greenhouse gas (GHG) emissions in the United States by 80% through the imposition of a "cap-and-trade" regime. (1) He pledged that, as President, legislation to achieve this goal would be among his top priorities. (2)

Congressional leaders also endorsed decisive action on climate change. In 2009, the House of Representatives enacted a far-reaching climate bill that included a cap-and-trade system and endorsed the 80% reduction goal. (3) The Senate refused to follow suit, however, and it appears unlikely that a cap-and-trade bill or other meaningful climate legislation will pass Congress in the next two years. (4) But the death of cap-and-trade does not mean the death of greenhouse gas regulation.

Although Congress did not put climate change legislation on President Obama's desk, the Obama Administration still moved ahead with various regulatory measures to control GHG emissions. (5) Using authority under the Clean Air Act and other existing environmental statutes, the Environmental Protection Agency (EPA) and other agencies have been expanding existing regulatory programs to cover GHG emissions and address climate change concerns. (6) Several measures are already in place and others are in the regulatory pipeline, although citizen suit litigation could produce still more.

These initiatives will produce a dramatic expansion of federal environmental controls on private economic activity. Taken together, these controls could represent the largest expansion of federal environmental regulation in decades, and yet they have never been explicitly endorsed, let alone authorized, by Congress. Worse still, there is little reason to believe that these measures will do much to reduce the threats posed by global climate change. Extensive GHG regulation will not notably mitigate projected warming.

Federal regulation of GHGs is not entirely the Obama Administration's doing. Federal regulatory authority over GHGs was facilitated--if not mandated--by the Supreme Court's decision in Massachusetts v. EPA. (7) Yet the Obama Administration has not resisted this newfound authority. To the contrary, the EPA and other agencies have embraced their opportunity to extend regulatory authority into new fields and have rejected legislative proposals to cabin their newfound power.

The extension of federal regulatory authority to control GHG emissions under existing statutory frameworks is a mistake. Such regulation will impose substantial regulatory costs for minimal environmental gain. Centralized regulatory authority offers little hope of controlling the planetary thermostat. Instead, mitigating the threat of anthropogenic climate change requires a different approach--one that is not authorized under existing law and that does not require dramatic expansions of the federal regulatory state.

Part I of this Article explains how the push for GHG regulation is not new. An environmentalist petition filed in 1999 eventually led to the Supreme Court decision authorizing federal regulation of GHGs under the Clean Air Act. Part II outlines the Obama Administration's use of this authority. The Clean Air Act, however, is not the only source of federal regulatory authority over GHGs. Part III provides an overview of some of the other regulatory initiatives undertaken by the Obama Administration to limit GHG emissions, or otherwise address the threat of global climate change.

The expansion of federal regulation does not guarantee an increase in environmental protection. In the case of GHGs, expansive regulatory action is unlikely to reduce the threat of climate change. Rather, as Part IV explains, such efforts are likely to be futile in the near to medium term. If policymakers wish to reduce the threat of climate change, they need to chart an alternative course. Part V explains why the best approach to climate change mitigation should focus on technological innovation and diffusion so as to make significant GHG emission reductions possible and affordable.

1. MASSACHUSETTS V. EPA AND THE ROAD TO EPA REGULATION

   Extensive scientific research suggests human activity is having a demonstrable effect on the global climate system. (8) Anthropogenic emissions have increased the concentration of carbon dioxide and other GHGs in the atmosphere, which has contributed to a gradual warming of the climate. (9) The precise nature and degree of the human contribution is unknown, and may even be unknowable given the complexity of the global climate system. (10) Nonetheless, even so-called "skeptics" accept that anthropogenic emissions contribute to global warming, though they dispute the magnitude of the threat. (11)

   The road to federal regulation of GHGs under the Clean Air Act began in 1999, when a handful of environmentalist organizations petitioned the EPA to control GHG emissions from new motor vehicles under Section 202 of the Act. (12) EPA General Counsel Jonathan Cannon had recently told a congressional committee that he believed the Agency had the authority to regulate GHG emissions but had no intent to do so at that time. (13) The petition aimed to force the EPA's hand. According to the environmentalist groups, global warming threatened human health and welfare, obligating the Agency to act. (14)

   The petition remained unanswered until 2003. (15) Neither the Clinton nor Bush Administrations was eager to unleash the power of the Clean Air Act on GHGs. Tired of waiting, the environmentalist petitioners and several northeastern states threatened to sue the Agency for its failure to act. In September 2003, the EPA denied the petition, declaring that it lacked statutory authority to regulate GHGs as pollutants under the Act, and that even if it had such authority, it would decline to exercise it because there were more effective ways of addressing the threat posed by global warming. (16) The EPA reasoned that the Act was written to address conventional air pollutants such as particulates and ozone smog, and not globally dispersed emissions such as carbon dioxide. (17) The Agency further concluded that coordinated international efforts made more sense than haphazard regulation built on an Act written for a different purpose. (18)

   The environmentalist and state petitioners were neither convinced by the EPA's analysis nor content to wait for congressional action on global warming. Instead, they filed suit, joined by a large number of states and interest groups. (19) A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit split three ways, ultimately rejecting the petitioners' claims, teeing the case up for the Supreme Court. (20)

   Massachusetts v. EPA, decided in 2007, is arguably the most consequential Supreme Court decision of the past five years. Among other things, the Court held, five to four, that the EPA had authority to regulate GHGs as air pollutants under the Clean Air Act and that the Bush Administration had failed to provide an adequate explanation for its refusal to regulate. (21) The Court concluded that there was no ambiguity in the Act of the sort that could trigger Chevron deference and that "greenhouse gases fit well within the Clean Air Act's capacious definition of 'air pollutant."' (22) Writing for the majority, Justice John Paul Stevens explained that the Act's "broad language" was designed to ensure sufficient "flexibility" so as to ensure that the Clean Air Act would not become obsolete. (23) He further brushed aside concerns that the Act's complex regulatory structure was a poor fit for global climate control, even though it had been designed and refined to combat localized air pollution problems. (25)

   Assuming that carbon dioxide and other GHGs constituted air pollutants subject to regulation under the Act, the Bush Administration's refusal to regulate was arbitrary and unmoored from its statutory obligations. In denying the environmentalist and state petition, the EPA did not deny the reality of human contributions to global climate change, nor did it minimize the threat. To the contrary, the EPA endorsed President Bush's remarks that the United States "must address" the threat of climate change and noted other policy initiatives intended to "reduce the risk" of global warming. (25) The EPA simply pursued a "different policy approach" that was a better fit for the nature of the problem. (26) Trying to use the Clean Air Act to regulate global atmospheric concentrations of carbon dioxide and other GHGs did not "make sense," according to the Agency, and would have constituted "an inefficient, piecemeal approach" to the problem. (27) A better approach, according to the EPA, would be to pursue international agreements so as to ensure global cooperation on a global concern.

   The EPA was likely correct as a policy matter. (28) The United States is not capable of reducing, let alone controlling, atmospheric concentrations of GHGs on its own, under the Clean Air Act or otherwise. The global atmosphere is a global commons, and it can only be protected through concerted global action. Yet the relevant statutory language did not permit the EPA to consider broader policy concerns or engage in a roving inquiry about whether it is desirable to adopt regulatory controls on GHGs. It had to exercise its discretion within the Act's statutory limits. (29)

   Under the Clean Air Act, the EPA is required to regulate motor vehicle emissions of any "air pollutant" that in the "judgment" of the Administrator "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." (30) Therefore, if GHGs are "air pollutants," the only question left for the EPA is whether their emissions contribute to public endangerment. (31) Although the Court did not order the EPA to issue an endangerment finding, that result...