U.S. environmental agency walks a tightrope on CO2
The 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”.
VEHICLES, BUT NOT POWER OR INDUSTRY
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.