Blog Post

EPA and Global Carbon: A Debate

Feb 27, 2013 | Jason Schwartz

This is a guest post by legal scholar Jason Schwartz, of the Institute for Policy Integrity at NYU. It opens an exchange between Policy Integrity and RFF scholars discussing legal and policy aspects of greenhouse gas regulation under the Clean Air Act.  -ed

In his 2013 State of the Union address, President Obama promised that his administration would not hold its breath waiting for Congress to act on climate change, but would instead continue using existing legal authorities to cut greenhouse gas emissions.

That brings the debate over how to rein in greenhouse gases to the finer points of the Clean Air Act: what does the administration have the authority to do?

Already, the Supreme Court has interpreted that the word "pollutant" in the Clean Air Act includes greenhouse gases, and EPA has read its authority under that legislation to permit setting greenhouse gas limits for cars and trucks, and developing performance standards for power plants. But the question now on the minds of many legal scholars and environmental advocates is: Can other statutory provisions be interpreted to enable broader or more efficient or more legally sound regulatory approaches?

Last week, the Institute for Policy Integrity staked out its position in a formal petition submitted to the agency, which argues that EPA should move to increase the coverage and efficiency of its regulatory response by building a more comprehensive, market-based approach. Policy Integrity's petition argues that certain largely ignored but potentially powerful provisions of the Clean Air Act—in particular, Section 115—are ideally suited for greenhouse gas regulation. Section 115 was designed specifically to address U.S. emissions that harm the health or welfare of foreign countries—i.e., international air pollution. Policy Integrity argues that all the statutory prerequisites to trigger Section 115 have been met for greenhouse gases: an international agency has acknowledged that U.S. emissions of greenhouse gases endanger foreign countries; and foreign countries, like Canada, have granted the U.S. essentially reciprocal rights to control any of their air pollution that might harm us. Policy Integrity concludes that Section 115 is therefore mandatory, and EPA must instruct states to develop implementation plans to adequately control their contributions to the international endangerment.

For us at Policy Integrity, the legal authority under Section 115 is clear and convincing. Others take a different perspective. This debate over the exact boundaries of EPA's existing legal authorities is crucial to help guide the agency's next steps. Later this week, RFF's Nathan Richardson and Policy Integrity's Jason Schwartz will debate the contours of EPA's authority under certain underexplored provisions of the Clean Air Act, in particular Section 115. Stay tuned.