April
30, 2003, 10:00 a.m. States’
Hot Suits
AGs seek to
force the administration’s hand on global warming.
his
year's brutal winter has made some New Englanders pray for global warming.
Not so for the attorneys general from states in the northeast. On January
30, the Massachusetts, Connecticut, and Maine AGs announced their intention
to sue the Environmental Protection Agency (EPA) to force action on climate
change. Several environmentalist groups filed a similar suit last December.
In both cases the plaintiffs claim that the EPA has failed to fulfill
a legal obligation to regulate carbon dioxide as an "air pollutant"
under the Clean Air Act (CAA).
These notices were
only the beginning. On February 20, the three aforementioned AGs joined
with their brethren from New York, Pennsylvania, Rhode Island, and Washington
State to announce more climate-change litigation. This new suit also seeks
to force federal regulation of carbon dioxide, in this case by piggybacking
such controls onto overdue revisions of pollution-control requirements
for industrial facilities. With each legal action the state AGs are trying
to remove climate-change policy from the elected branches and thrust it
into the courts.
At first blush, the
AGs' case seems superficially plausible. Under the CAA, the term "air
pollutant" is defined to include "any physical, chemical, [or]
biological . . . substance or matter which is emitted into or otherwise
enters the ambient air." Under section 108 of the act, the EPA is
required to list any such pollutant that, when emitted by numerous mobile
or stationary sources, will "cause or contribute to air pollution
which may reasonably be anticipated to endanger the public health or welfare."
"Welfare," in turn, is defined to include effects on "weather"
and "climate." Section 108 listing is important because it sets
in motion a wide range of regulatory requirements. Thus insofar as carbon
dioxide and other greenhouse gases are emitted from numerous automobiles
and industrial facilities, and insofar as such emissions "may reasonably
be anticipated" to impact the climate, it would seem that carbon
dioxide must be regulated under the CAA.
The largest problem
with the state AGs' arguments is that the structure and history of the
CAA make clear Congress never sought to regulate carbon dioxide or other
greenhouse gases under the act. Indeed, the primary regulatory provisions
triggered by a section 108 listing — the creation and enforcement
of national ambient air-quality standards — are fundamentally incompatible
with the regulation of greenhouse gases as such.
Section 109 requires
the EPA to set national standards for all listed pollutants at the level
"requisite to protect the public health" with an "adequate
margin of safety." Once standards are set, states must develop "implementation
plans" to ensure that all metropolitan areas within each state meet
the standards by the prescribed deadlines. The premise of these provisions
is that each region of the country — indeed each metropolitan area
— is capable of adopting regulatory provisions capable of affecting
ambient levels of the relevant pollutant so as to comply with national
air-quality standards. This premise holds for traditional air pollutants,
such as lead, particulate matter, and tropospheric ozone (i.e. "smog").
It does not for carbon dioxide. Indeed, there is no possible way to adopt
meaningful regulation to control localized ambient concentrations of carbon
dioxide. Insofar as greenhouse-gas emissions are a concern, it is due
to global concentrations in the atmosphere, not their ambient concentrations.
The lack of any regulatory
provisions in the CAA designed to address climate change concerns is no
accident. Congress explicitly considered and rejected proposals to regulate
carbon dioxide when it revised the CAA in 1990. A committee draft included
provisions to regulate automotive emissions of carbon dioxide, but this
provision was removed. As finally adopted, the 1990 CAA Amendments only
contained provisions to study climate change and encourage various "non-regulatory"
measures. Since then, numerous proposals have been introduced to regulate
carbon dioxide, and none have been passed. It is simply not plausible
that Congress has left such the decision whether to regulate greenhouse
gases to the EPA, let alone the courts.
Even if one were
to conclude that the text, structure, and history of the CAA are equivocal,
the AGs would still face uphill sledding. Insofar as the text and structure
of the CAA are ambiguous, federal courts will defer to the EPA's reasoned
interpretation of the statute. Under the Chevron doctrine, the
question before the court will be whether the EPA's construction of its
statutory obligations is reasonable, not whether the state AGs' interpretation
seems more plausible or will produce better policy results. This places
a substantial burden on the AGs if they want to win their case.
While the AGs do
not have the best legal hand, the Bush administration has not played its
strongest suit. To the contrary, administration reports and actions on
climate change provide underlying support to the state AGs' claims that
carbon dioxide should be considered a pollutant under the CAA. Last May,
the administration released the 2002 "Climate Action Report,"
which embraced environmentalist claims that industrial emissions of greenhouse
gases are contributing to climate change and "global mean surface
air temperature and subsurface ocean temperature to rise." The report
was careful to note that such conclusions are somewhat uncertain, and
do not necessarily justify regulation of greenhouse-gas emissions. Nonetheless,
the report weakens the EPA's claim that carbon dioxide is not a pollutant
under the CAA, as do prior statements by EPA officials that embraced regulatory
authority to regulate greenhouse gases.
Other Bush-administration
initiatives to reduce greenhouse gas emissions further undercut the administration's
position. President Bush has announced his opposition to the Kyoto Protocol,
but the United States remains a signatory to the agreement, and the administration
has rolled out several "voluntary" and non-regulatory climate
measures. Even worse, EPA bureaucrats continue to draft agency documents
suggesting the need to regulate greenhouse gases to protect "air
quality." It seems as if Bush's appointees have yet to recognize
the threat: If carbon dioxide is found to meet the statutory definition
of a pollutant under the CAA, regulatory requirements kick in automatically,
the administration's preference for non-regulatory measures notwithstanding.
A decision to regulate greenhouse gases as air pollutants would vastly
increase the EPA's regulatory authority over private economic activity.
Carbon dioxide is a ubiquitous byproduct of fossil-fuel energy combustion.
Controlling carbon dioxide emissions would require regulating every industrial
facility that burns oil, coal, or natural gas, along with all manner of
agricultural practices and land-use decisions. It would further require
yet another round of federal controls on automobile tailpipe emissions.
If the federal government is to assume such awesome regulatory authority,
the decision should be made in the halls of Congress, not a federal courthouse.
—
Contributing Editor Jonathan
H. Adler is an assistant professor at Case Western Reserve University
School of Law.
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his
year's brutal winter has made some New Englanders pray for global warming.
Not so for the attorneys general from states in the northeast. On January
30, the Massachusetts, Connecticut, and Maine AGs announced their intention
to sue the Environmental Protection Agency (EPA) to force action on climate
change. Several environmentalist groups filed a similar suit last December.
In both cases the plaintiffs claim that the EPA has failed to fulfill
a legal obligation to regulate carbon dioxide as an "air pollutant"
under the Clean Air Act (CAA).
