The Clean Air Act: A Suitable Tool for Addressing the Challenges of Climate Change

• Date: 01 April 2011

4-2011 NEWS & ANALYSIS 41 ELR 10301

D I A L O G U E S

The Clean Air Act: A Suitable

Tool for Addressing the

Challenges of Climate Change

by Robert B. McKinstry Jr.

Robert B. McKinstry Jr. is a partner in the Philadelphia oce of Ballard Spahr, LLP, where he

heads the rm’s Climate Change and Sustainability Initiative. He was counsel of record for the

group of amici climate scientists supporting the petitioners in .

The political opponents of regulation addressing cli-

mate change claim that the Clean Air Act (CAA)1 is

a “fossil” neither intended nor suitable for address-

ing the challenges of climate change.2 Legal and historical

analysis suggests otherwise. Both the text of the Act, as

interpreted by the U.S. Supreme Court in Massachusetts v.

,3 and t he leg-

islative history indicate a congressional intent to regulate

emissions of pollutants that pose a risk of causing changes

in worldwide climate. Far from being a fossil, the statu-

tory “bones” provide a broad array of regulatory and other

tools that can be exibly applied. ese include not only

technology-based emissions standards and enforcement

tools, but programs for comprehensive planning by states

to use the full range of incentives and disincentives avail-

able under their police and spending powers. ese tools

also include tradable permits, emissions fees and auctions,

other incentive-based emissions reductions approaches,

and air quality-based limits.

Without a doubt, some provisions of the Act are not well

suited for the unique problems posed by climate change.

However, for the most part, the statute is suciently gen-

eral and exible to allow rulemaking and interpretation

to tailor these provisions to the problem at hand.4 e

Supreme Court has specically provided EPA with consid-

erable exibility in implementing the statute, nding that

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

2. is statement appeared in letters written by the heads of various agencies,

which appeared at the beginning of the -

   , 73 Fed.

Reg. 44354, 44362 (July 30, 2008) (ANPR), and were directly contradicted

by the extensive discussion, prepared by EPA sta, that followed describing

the ways in which the CAA could be used and the challenges and questions

presented. e letters appeared to be internal comments on the initial sta

draft that were included verbatim in the ANPR.

3. 549 U.S. 497, 37 ELR 20075 (2007).

4. Legal scholars have suggested that gridlock in the U.S. Congress and the

need to address increasingly complex problems has led to the situation

where statutor y law must be increasingly developed through quasi-legis-

lative rulemaking proceedings and judicial interpretation. See William N.

Eskridge Jr. & John Ferejohn, Super-Statutes, 50 D L.J. 1215 (2001).

EPA “no doubt has signicant latitude as to the manner,

timing, content, and coordination of its regulations with

those of other agencies.”5

In keeping with the incremental approach to regulation

contemplated by the Supreme Court, EPA has announced

settlements with states and environmental groups, many

of which were petitioners in Massachusetts, in which EPA

has agreed to establish greenhouse gas (GHG) emissions

standards for both new and existing major fossil fuel-red

electric generating units (EGUs) and petroleum reneries

pursuant to §111 of the CA A.6 is approach will expand

upon EPA’s sectoral approach to regulation of GHG emis-

sions that began with the promulgation of emissions stan-

dards for light cars and trucks under §202 of the CA A,7

and is continuing with the development of GHG emis-

sions standards for heavy vehicles and a second round of

standards for light vehicles. e automobile industry has

embraced EPA’s approach to regulating mobile source

GHG emissions. e mobile source rules were developed

through a negotiated rulemaking, and the automobile

industry has intervened on EPA’s behalf to defend the light

vehicle standards against challenges by states, industry

5. Massachusetts, 549 U.S. at 533.

6. On December 30, 2010, EPA published notice of a proposed settlement in

, No. 06-1148 and consolidated cases (D.C.

Cir. Apr. 27, 2006), pursuant to which EPA would agree to propose GHG

emissions standards for new and existing EGUs under §111 of the CAA

by July 26, 2011. 75 Fed. Reg. 82392 (Dec. 30, 2010). is settlement

would resolve litigation challenging EPA’s failure to include GHG emissions

standards in the utility new source performance standards (NSPS) promul-

gated in 2006, and remanded by the Court to EPA for reconsideration in

light of Massachusetts. EPA simultaneously published notice of a proposed

settlement in , No. 08-1277 (D.C. Cir.

2010), pursuant to which EPA would agree to propose GHG emissions

standards for new and existing petroleum reneries under §111 by Decem-

ber 10, 2011. 75 Fed. Reg. 82390 (Dec. 30, 2010). is agreement would

settle litigation challenging EPA’s failure to include GHG standards in the

Standards of Performance for Petroleum Reneries, 73 Fed. Reg. 35838

(June 24, 2008).

7. Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate

Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25324 (May 7,

2010).

Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.