Let's Get On With It as Soon as Possible

• Author: E. Donald Elliott
• Position: Former General Counsel of EPA, is a partner at Willkie Farr & Gallagher LLP in Washington, D.C., and Professor (adjunct) of Law at Yale and Georgetown law schools
• Pages: 52-52

Page 52 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, March/April 2009

Th e fo r u m

sense for EPA to set national GHG

emissions standards for new vehicles

under the CAA that extend or, if

feasible, go beyond California’s,

rather than tolerate a patchwork.

For the power sector, renewables

are important but so is coal. Cap-

and-trade creates only about 10

percent of the economic incentive

needed for new coal-f‌ired power

plants that capture and store GHGs.

Both China and the U.S. desperately

need to get clean coal technologies

of‌f the drawing boards into use. e

CAA, as well as new subsidies for

carbon sequestration, can jump-start

deployment.

Action is also needed to nudge

engineers to construct energy-ef‌f‌i-

cient structures. More than a third

of GHGs are due to buildings. By

raising the cost of wasting energy,

cap-and-trade should, at least in

theory, cause tenants to demand

more energy-ef‌f‌icient buildings. But

in practice, weak demand by U.S.

consumers for energy-ef‌f‌icient appli-

ances and vehicles has proven there

is also a role for minimum design-

standards for new buildings, like

California’s and DC’s.

Congress is not likely to enact a

national building code and localities

are notoriously slow to revise theirs.

But EPA can regulate the design of

new buildings now under CAA Sec-

tion 165 (the so-called Prevention

of Signif‌icant Deterioration or New

Source Review program) if they

are projected to emit over 100 tons

annually of any regulated GHG.

Rather than exempt buildings, as the

Chamber of Commerce has asked,

the Obama EPA should get on with

the task of regulating GHGs from

new buildings in a sensible, practi-

cal way through general permits and

performance-based standards, as

EPA has done elsewhere if smaller

sources collectively make large con-

tributions to pollution.

e CAA is not going away. e

sooner we act, the greater ef‌fect we

have to slow increasing concentra-

tions of GHGs. We also surface

problems to f‌ix as legislation moves

through Congress, and enhance po-

litical pressure to enact, not just talk

about, strong new legislation. A bill

won’t pass quickly, however, and we

as a nation will have zero credibility

going into the next worldwide Con-

ference of the Parties in Copenhagen

in December to negotiate the post-

Kyoto regime beginning in 2012 if

there is still a perception a year after

Obama’s election that the United

States has done little to regulate

GHGs.

So act now!

E. Donald Elliott, a former General Coun-

sel of EPA, is a partner at Willkie Farr & Gal-

lagher LLP in Washington, D.C., and Profes-

sor (adjunct) of Law at Yale and Georgetown

law schools. He is a member of the Boards

of Directors of ELI and the Center for Clean

Air Policy, but the views expressed are per-

sonal and not those of any organization or

group.

Avoiding a

Regulatory

Nightmare

P G

The president should wait

for Congress to go f‌irst.

Proponents of regulating

greenhouse gases under

existing Clean Air Act

programs believe that regulation

can be narrowly tailored to capture

only the automobile industry and

large industrial and other sources.

at’s just not true. Any regula-

tion of GHGs under the CAA will

likely trigger rigid, hugely expensive

command-and-control regulation of

small emission sources of all types

throughout the nation, undermin-

ing the president’s ef‌forts to restore

the country’s economic well-being,

while yielding no meaningful envi-

ronmental benef‌it.

In the f‌irst place, CAA regulation

Let’s Get On

With It as

Soon as Possible

E. D E

Obama’s EPA should use

parts of the existing

Clean Air Act to ad-

dress greenhouse gas

pollutants as soon as

possible. New legislation creating a

cap-and-trade program designed for

GHGs should be better than one

cobbled together through strained

interpretations of existing authority.

EPA faces signif‌icant legal risks if

it creates a trading program with-

out specif‌ic legislative authority, as

shown by the recent court decisions

invalidating but not vacating the

Clean Air Interstate Rule, and the

prior regional haze decision. I tried

unsuccessfully to f‌ix that in 1990

when as EPA general counsel I at-

tempted to persuade Congress to

give EPA explicit stand-by authority

for trading programs for pollutants

other than sulfur dioxide, but it has

not done so.

Even after Congress enacts cap-

and-trade (or a regulatory tax), the

issue of how to regulate GHGs

under the existing CAA will persist.

Regulating the temperature of the

planet by adjusting the mix of gases

in our atmosphere is the most am-

bitious undertaking yet attempted

by human beings. Cap-and trade is

only a down payment. We will also

need targeted “policies and mea-

sures,” or PAMs, for the largest con-

tributors — transportation, power

generation, and buildings. Some

PAMs can be implemented under

the CAA. Consequently, the pro-

posed bills leave most of the CAA

undisturbed.

President Obama has pledged to

grant the California waiver allowing

its GHG standards for new motor

vehicles to go into ef‌fect. irteen

other states have opted in. It makes