Today's CAA a Blunt Instrument for GHG Control

• Author: Robert R. Nordhaus
• Position: Member of the Washington, D.C., law firm of Van Ness Feldman, P.C., and teaches at George Washington University Law School
• Pages: 54-55

Page 54 ❧ 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

Alternatively, in a widely-circulated

article published in October, envi-

ronmentalists Michael Northrop and

David Sassoon discussed using the

CAA to link up state and regional

cap-and-trade programs, thereby cir-

cumventing the question of whether

the EPA has the authority to establish

its own national program.

All this raises the bigger question

of whether President Obama should

introduce cap-and-trade under the

existing CAA, even if he could legally

f‌ind a way. While the CAA has the

obvious advantage of being readily

available, attempting to establish

a rushed or half-hearted cap-and-

trade program under its ungainly

provisions could slow down parallel

congressional ef‌forts to pass cap-and-

trade, and well-tailored legislation

would almost certainly provide a

preferable framework for greenhouse

gas mitigation. As Heinzerling put it

to legislators last April, “the Clean Air

Act is an excellent of‌f-the-rack gar-

ment for greenhouse gas regulation,

but it may be that Congress wants a

more tailored f‌it.”

A wiser strategy, then, might be

for President Obama to use the CAA

to prod Congress on climate change,

rather than do its work for it. By us-

ing more established federal tools

such as CAFE standards and CAA

Section 111 new and existing source

performance standards, granting

the waiver that will allow California

and over a dozen other states to start

enforcing stricter auto emission stan-

dards, and encouraging local, state,

and regional experimentation with

stronger environmental regulations,

the Obama EPA can make it increas-

ingly untenable for Congress not to

act.

As the history of environmental

regulation has taught us, if such ac-

tions occur, inf‌luential industries

like automakers and electric utilities

—already subject to federal and state

regulation — will then demand that

Congress provide a more organized,

comprehensive approach to climate

policy.

In this sense, President Obama

already has the tools to make indus-

try rally behind, rather than against,

a strong cap-and-trade bill — and

therefore doesn’t need to try to force

his sleek, modern cap-and-trade plan

into the 1970s leisure suit that is the

existing Clean Air Act.

Doug Kendall is President of the Constitu-

tional Accountability Center. This article was

adapted from an article that appeared in

grist.com.

Today’s CAA a

Blunt Instrument

for GHG Control

R R. N

Should EPA regulate

greenhouse gases under

the Clean Air Act? EPA’s

Advance Notice of Pro-

posed Rulemaking issued

last July devoted 166 Federal Register

pages to that question, in a bizarre

face-of‌f between EPA and eight other

executive branch agencies. ousands

of pages of public comment followed.

What can be added at this juncture?

ree key points:

First, there appears to be little dis-

pute that the Clean Air Act is, at best,

a blunt instrument for GHG control.

ere appears to be no viable legal

theory under which an economy-

wide cap-and-trade program can be

established under the CAA (and there

is serious question as to whether such

a program could be set up even on a

more limited basis for large stationary

sources). For that reason, an explicit,

economy-wide price signal for carbon

would appear out of reach under ex-

isting law.

Second, in contrast to an “up-

stream” cap-and-trade program

which controls emissions from small

sources by regulating their fuel sup-

pliers, the CAA’s tools for controlling

emissions from vehicles and small

stationary sources are limited. Emis-

sions standards for new vehicles and

engines under Section 202 would

regulate only CO2 emissions per

mile. ey would not constrain

vehicle miles traveled, and cannot

control the overall level of transpor-

tation sector emissions. Moreover,

while performance standards under

Section 111 and permits under Sec-

tion 165 and Title V of the CAA can

feasibly reach large stationary sources,

the overwhelming majority of small

sources — a hundred million-plus

houses, farms, and small businesses

— are beyond the practical reach of

these provisions, either because they

are below the CAA’s permit thresh-

olds or (if above the thresholds) are

too numerous to feasibly permit.

ird, even if the agency tried to

narrow the focus of its ef‌forts under

the CAA to large stationary sources

and motor vehicles, the seemingly

inf‌lexible permitting requirements

under the Prevention of Signif‌icant

Deterioration program and Title

V would require EPA, by its own

estimate, to issue permits to an addi-

tional half million mostly small sta-

tionary sources. EPA’s ANPR of‌fers

various legal theories to avoid this

administrative burden, but no clear

path forward is evident.

us, it is fair to conclude that

any attempt to fashion a GHG

regulatory program under the exist-

ing CAA that sends an explicit price

signal on carbon emissions; has

economy-wide reach; and is work-

able administratively would entail

substantial legal risk. One needs only

to view the wreckage of the Bush

administration’s Clean Air Interstate

Rule, Clean Air Mercury Rule, and

New Source Review rule to recognize

the damage that ignoring such risks

has done to the credibility and ef‌fec-

tiveness of EPA’s regulatory program.

U.S. climate policy cannot af‌ford

false starts — a GHG control pro-

gram to be credible and ef‌fective in

the long term must have an unassail-

able legal foundation.

Congress needs to address cli-