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Would Dingell’s legislation overturn Mass v EPA? (Pt. 4)



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The larger issue put in play by Mass v EPA is whether EPA must set national ambient air quality standards (NAAQS) for CO2 and other greenhouse gases. This is not obvious at first glance, but is well known to policy insiders.

EPA’s first step in regulating an air pollutant under Section 202 is to make a “judgment of endangerment.” Any EPA regulation of CO2-emission rates from motor vehicles would have to include, and be based upon, an official judgment that CO2 emissions “endanger public health or welfare.” In setting such standards, Section 202 directs EPA to take account of technological feasibility and cost. This is one reason plaintiffs argued that EPA regulation of CO2 emissions from cars would not adversely affect the U.S. auto industry.

What plaintiffs conveniently neglected to mention is that an endangerment finding with respect to CO2 emissions under Section 202 would trigger regulatory action under other Clean Air Act provisions. The most important such provision is Section 108, the cornerstone of the NAAQS program. Whereas Section 202 standards are emission rate (grams per mile) standards, Section 108 standards are pollution concentration (parts per million) standards. That is, a NAAQS specifies how many parts per million (or billion) of a substance is allowable in the ambient air. The NAAQS program requires States to adopt policies that will reduce concentrations of the pollutant of concern to the allowable level. And here’s the kicker: In setting NAAQS, EPA is prohibited from taking cost and technological feasibility into account.

The majority in Mass v EPA has created a regulatory Pandora’s Box. Consider that the Kyoto Protocol, which by some estimates could cost the U.S. economy hundreds of billions annually, would only slow the increase in CO2 levels. One prominent alarmist estimated that it would take “thirty Kyotos” to stabilize CO2 levels. Plaintiffs in Mass v EPA argued that current CO2 levels endanger public health and welfare. That’s also what Al Gore and every other alarmist continually tell us.

So if EPA were to undertake a NAAQS rulemaking for CO2, the agency would face enormous pressures to set the standard below current atmospheric levels. However, there is no known way to lower atmospheric CO2 concentrations short of major global de-industrialization.

At the very least, establishing NAAQS for CO2 would give the Kyoto crowd carte blanche to demand ever-more onerous government meddling in energy markets and political constraints on economic growth. Would even de-industrializing America be enough to save the planet? “Probably not,” our greener friends would say, “but every little bit helps.”

That the winning plaintiffs in Mass v EPA view their lawsuit as a step towards economy-wide CO2 regulation under the NAAQS program is no mere matter of logical inference. In 2003, three of the State AG plaintiffs, including lead attorney Tom Reilly of Massachusetts, filed a notice of intent to sue EPA unless it initiated a NAAQ rulemaking for CO2.

Title VII of the Dingell-Boucher draft legislation aims to keep Pandora’s Box shut. Dingell states the common sense of the matter when he says that GHG emission standards for cars are effectual fuel economy regulations, that only one agency should regulate fuel economy standards, and that that agency should be the one with the longest experience and most expertise in the field: NHTSA, not EPA or CARB.

Dingell denies that his legislation would overturn Mass v EPA, noting that it does not contest the majority’s opinion that EPA has authority under the Clean Air Act to regulate CO2. What the legislation would do, however, is preempt an EPA rulemaking under Section 202. That would forestall—perhaps indefinitely—an EPA judgment of endangerment—the trigger for a NAAQS rulemaking with limitless potential to shut down economic growth.

Too bad we can’t have Title VII without the 35 billion gallon bio-fuel mandate, low-carbon fuel standard, new fuel economy standards, and flex-fuel mandates. Political reality is seldom pretty, and from this free-marketer’s viewpoint, it gets uglier by the day.



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