U.S. environmental agency walks a tightrope on CO2

April 20, 2009

John Kemp Great DebateThe Environmental Protection Agency (EPA)’s proposed findings on greenhouse gas emissions were a carefully worded attempt to appease climate-change activists while containing hostility from business and energy organizations or Congress.

The “endangerment” and “contribute” findings, that greenhouse gases posed a danger to human health, were designed to provide clear signs of progress on a signature issue for the administration while preserving maximum flexibility.

The Obama administration is struggling to reconcile high hopes of ambitious action with the need to formulate a policy that can be sold to the Democratic Party’s working-class base in the industrial Midwest and coal-producing states of Appalachia.

Senior officials have tailoring their message depending on the audience. In briefings to climate groups, the administration has stressed it has enough authority under the Clean Air Act to regulate emissions and is prepared to press ahead unilaterally if Congress fails to approve comprehensive legislation.

But in remarks aimed at legislators and business organizations, officials have stressed they prefer a legislative solution, that any regulation is subject to consultation and would not take effect for years, would be limited in scope, and would be pre-empted if Congress enacted a comprehensive scheme.

For climate groups, the endangerment and cause-and-contribute findings have been presented as a major step forward. For business lobbies and legislators, as a minor regulatory change required in response to the 2007 Supreme Court decision in “Massachusetts versus EPA”.


The problem is the complicated nature of EPA’s authority under the Clean Air Act. In fact the act is not a single piece of legislation but a series of laws passed over more than three decades conferring separate authorities on the EPA.

The basic division is between Title I of the Act (Air Pollution Prevention and Control) and Title II (Emission Standards for Moving Sources).

* Title I gives EPA authority to publish national ambient air quality standards (NAAQS), including limits on specified pollutants, and require state governments to submit implementation plans to enforce them. Title I covers all sources of pollution, including stationary ones such as power plants and industrial facilities as well as mobile sources such as motor vehicles and aircraft.

* Title II gives EPA specific authority to impose regulations limiting emissions from new motor vehicles sold in the United States. Title II is much narrower in scope and applies only to motor vehicles (there are some limited provisions for aircraft emissions, not relevant here).

The trigger language under both titles is similar: emissions “cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare”. But the language is incorporated in two separate places in the law, one under each title.

What EPA did on Friday was to publish a determination that found that emissions of CO2 and five other gases contributed to climate change and a threat to public health and welfare in the context of new motor vehicles (Title II). But it was silent on the question of whether emissions of the same gases from other sources such as power plants and industry were also a threat to public health and welfare (under Title I).

In fact, in its formal announcement, the agency was careful to note “EPA is not proposing or taking action under any other provision of the Clean Air Act”. In the accompanying press statement, EPA went further and said “An endangerment finding under one provision of the Clean Air Act would not by itself automatically trigger regulation under the entire Act”.

This is clearly illogical. Either emissions from vehicle tailpipes and from stationary installations such as power plants and industrial facilities both endanger public health and welfare, or neither do.

In fact, the agency’s finding noted transportation sector sources (subject to regulation under Title II) were only the “second largest greenhouse gas-emitting sector” (accounting for 24 percent of the total). The largest source is electricity generation (contributing 34 percent of the total) with the industrial sector not far behind (contributing 19 percent); both are subject to regulation under Title I.

In another twist, the agency cited six gases as contributing to climate change but only four of these are emitted by motor vehicles; the other two come from other sources.

EPA claims its narrow decision was required to comply with the Supreme Court ruling in “Massachusetts” — which required the agency to issue a finding under Title II but was silent on its responsibilities under Title I. But there was nothing to preclude it reaching a broader decision if the EPA had wished, and it would have been more logical to do so.


The real reason for these regulatory contortions is political. The administration and EPA are wary about trying to launch a nationwide CO2 emissions regulation scheme under the existing Clean Air Act:

*It is far from clear the Act was intended for this purpose; the Supreme Court is divided and this approach to regulation depends on the continuing support of a narrow base of five justices, including swing-voter Justice Anthony Kennedy.

*It would turn the EPA into one of the country’s top economic and business regulators (a task for which it is not well suited).

*It would provoke howls of rage from Congress about by-passing the normal legislative process, a criticism to which Democrats are sensitive having accused the Bush administration of much the same thing during its eight years in office. The party is wary of being blamed for raising energy costs for ordinary businesses and consumers without some political cover.

For these reasons, EPA reached the narrowest possible finding. But the Title II ruling on motor vehicle emissions means it would be relatively easy for EPA to make a broader ruling under Title I if comprehensive emissions legislation stalls for lack of 60 votes in the Senate.

The EPA and the Obama administration may find it hard to control the process from here. If anyone files a petition to the agency asking it to consider regulating emissions under Title I, the agency may not be able to refuse without appearing irrational and vulnerable to a court challenge.


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You hit the nail squarely on the head John. This is just good public relations for the administration. The fact of the matter is that coal pound for pound produces roughly 30% more CO2 than oil. It is probably asking to much of our elected officials to stand up and behave like “Statesmen” instead of worrying about raising enough money for the next election cycle.

Posted by Anubis | Report as abusive

I think this announcement stands as a warning to those who will oppose cap-and-trade or cap-and-dividend proposals in the near future. The Obama administration seems interested in persuing cap and trade, but there are a number of hurdles to overcome there. I think dangling the threat of allowing the EPA to unilaterally limit emmisions under Title I will give pause to those who wish to oppose cap and trade legislation.

Posted by Adam | Report as abusive

We don’t go to the doctor to get our taxes done, also we dont go to an accountant for medical advice. Our legislators (with their law or business degrees)have no business writing laws pertaining to a science they have absolutley no knowledge of. I grow tired of all the banter from non-science people on the topic of science. As a leader and legislator, it would behoove the people, to listen and pay attention to the science community. Basing your environmental decisions on a profit margin is rediculous. Its not fair to the subsequent generations who increasingly have to fix the problems caused by these poor decisions.

Posted by tripswitch | Report as abusive

Thank you for a clear, concise and forthright explication of the issues. As an ardent environmentalist and an active Democrat I sometimes get lost in the political hyperbole.

Posted by Elizabeth R | Report as abusive

BRAVO JOHN… and from the comments posted so far, there appears to unanimous agreement that we citizens are REALLY tired of the self-serving games played by the lawyers, bureaucrats and politicians…. all funded by us taxpayers.

Posted by garish | Report as abusive

Good article. It’s long past time that leaders made long-term decisions based on science to best manage our planet’s resources rather than continuing to accept the continued rape-and-pollute status quo operations of the highest-bidding corporate interests.

Now that the US finally has a federal administration with the fortitude to require industry and the wasteful US consumer to clean up their acts. As bold as the move appears, however, Obama is not taking big steps here. As the article notes, many illogical pollution exemptions remain. The reason for this is clear: entrenched powers still hold too much sway. The coal industry apparently has convinced legislators that there exists some magic substance called “clean coal” (but there isn’t). Aviation also gets a free pass on emissions, probably because Boeing “invests” regularly in the K-Street lobbyist firms. And let’s not forget agriculture – if you drive a dirty diesel tractor or truck, emitting toxic pollution directly on the food of the nation, then you continue to receive not regulation but SUBSIDIES to continue the reliance on imported fuels or, even less feasible, ethanol incentives.

No doubt Limbaugh will rant for months on how horrible it is to regulate as a way to keep your planet clean and inhabitable for the long term. Limbaugh may also think that the best way to keep a teenager’s room clean is to “allow the free market” and “technology” to keep it from becoming a mess. In reality, the is very modest change in EPA regulatory stance doesn’t threaten any of the entrenched special interests at all.

Posted by Michael | Report as abusive

John nicely takes the history of why emissions haven’t been regulated (all political) rumples it up and tosses it over his shoulder. Then writes this article as if it were something new. “The real reason” regulation hasn’t happened is strictly political. Labor is not happy, Big Oil isn’t happy, Big Coal isn’t happy, Democraticans and Republocrats aren’t happy. So, nothing happens. Anybody old enough to remember “Wear a sweater”? What happened to that president?

Posted by Timmy | Report as abusive

Did it need this long for the EPA to disclose some facts that have been obvious for a long time ? It comes at a time where every one is feeling the heat coming on. We are already in the Red Zone, long past recovery. Yet we continue to debate if Global Warmings are real and associated to human activity ?

The same happened in early 2008, when the G20 and its chief financial officers projected a rozy picture of the Global Economy & GDP etc ~ To every ones surprise the whole financial system across the worlds collapsed in their faces ! This time on, it will be the real world we live in, which will surprise us with the biggest collapse ! i think it is far more serious than all the Terror in the world ! Brace your self for the real Jolt ! As i see nobody reacting or coming up with any fire fighting solutions ! CO2 is a Odorless and Tasteless and Colourless gas which can douse out any fire !?

While most are reeling under Financial Melt Downs and hoping a speedy recovery to get back to comfort zones !

All i can say is ~ God Bless all the Air Breathing Engines !

sing !!!

Posted by Somender Singh | Report as abusive

Of the man made CO2 about 14% to 32% is from transportation depending on whose numbers you want to use. No one really knows how much is man made verses nature made much less how much from what industry. Please keep in mind the following: “Consumption of vegetation by animals & microbes accounts for about 220 gigatonnes of CO2 per year. Respiration by vegetation emits around 220 Gt. The ocean releases about 330 Gt. In contrast, human emissions are only around 26.4 Gt per year.” So, transportation is responsible for about 3.7 to 8.4 Gt per year. The only way to make this be more than a drop in the bucket is if we completely shift from an oil based transportation industry to a total electric transportation industry. And, the problem with that is no one in Congress is looking at this kind of scenario. There are ways to do this. Here is a 1996 Discover article on a flywheel engine.

http://www.mega.nu:8080/ampp/bitterly.ht ml

But, the US auto industry and Congress has been controlled by big oil for so long the idea of such devices is avoided like the plague.

If you were to couple affordable LED lighting for home and industry and advances in both portable solar energy and vehicle energy recovery, the increase to the power grids would be minimized while providing the populace with very affordable transportation and a reduction in the CO2 output.

Of course with the increase in volcanism over the last 100 years this drop in CO2 is not significant. But we do not have to tell anybody that fact. I am all for cleaning up our pollution. I wish we would pay as much attention to water and land pollution as we do CO2. We pollute our land and water with so many hideous substances that nature cannot handle like it can handle CO2. I hope we don’t lose sight of these ecologically devastating substances just because it has become popular to jump on the global warming bandwagon. There are more dangers than just global warming and I am not sure I buy all the doom and gloom spread by the Global Warming industries.

Posted by B.Free | Report as abusive

you make a really good point about the counterintuitive decision to absolve the utilities, private equity firms and other shareholders in electricity markets who are responsible for a better portion of the emissions.

besides, it would be easier and cheaper to regulate stationary sources of GHGs. there are only a couple technologies and major companies at play versus a globe full of millions of moving targets with multinationals firmly attached to the gov’t teets!

i wonder if they WANT to drive the automakers into bankruptcy on purpose for some reason?

Posted by mkinla | Report as abusive