Blog Post

EPA and Global Carbon: Hiding in Plain Sight

Mar 5, 2013 | Jason Schwartz

This is the third post in a debate between RFF and Institute for Policy Integrity scholars over the best tools for EPA’s greenhouse gas regulations under the Clean Air Act. See Nathan Richardson’s critique of Policy Integrity’s recent petition to EPA.

As Nathan Richardson rightly notes, debate over the best legal tools to craft climate regulations can sound dry, yet the real-world implications could not be more vital. At stake are the breadth, efficiency, and legality of EPA’s response to the most pressing environmental crisis of our time. I thank Nathan for hosting this online debate to explore the boundaries of EPA’s statutory authority.

Policy Integrity staked out our position in a recent petition to EPA: Section 115 provides straightforward authority to build comprehensive, market-based regulations. Other provisions of the Clean Air Act are also available, but they are no more legally sound and are less comprehensive. In Nathan’s response to our petition, he argues that Section 115 presents unnecessary legal risks, and claims that the provision is too short, too scant on details, and too untested to provide independent regulatory authority. Instead, Nathan sees Section 115 as a subordinate supplement to other, more established regulatory programs.

Nathan accuses us of trying to hide the elephant of nationwide climate controls inside the mousehole of Section 115. I would argue that Section 115 is no mousehole, nor is EPA’s authority hidden. To coin a different animal-themed metaphor, Section 115’s support for greenhouse gas regulations is more like a polar bear poised on the tip of an iceberg: though sometimes overlooked against the snowy backdrop, the polar bear is standing in plain sight; and though the iceberg’s tip appears small, a solid structure lies just below the surface.

Nathan’s first critique is that Section 115 is too “short and skeletal” to provide the necessary authority. Length, however, is a poor indicator of whether or not a statutory provision grants clearly-defined authority to tackle a significant problem. Section 115 may only contain 312 words, but EPA’s entire regulatory response to the greenhouse gas emissions from passenger vehicles was built under Sections 202(a)(1) & (2)—which contain a mere 180 words. Moreover, Section 115 refers to the implementation process under Section 110, borrowing structure from that much longer and frequently used passage.

Second, Nathan argues that Section 115 is too vague, not offering enough guidance on regulatory “scope, stringency, or flexibility.” Yet, Section 115—together with the cross-referenced Section 110—does give EPA clear boundaries on the scope, stringency, and flexibility of regulation for international air emissions. The scope is explicitly broad (“any air pollutant”) but sharply limited by specific triggers: the endangerment and reciprocity findings. Similarly, the flexibility of available regulatory approaches is made explicit in Section 110’s references to control measures, like economic incentives, and to adaptable compliance schedules.

As for stringency, the language of Sections 115 and 110 together establish the following standard: to “adequately” “control” the “endangerment of public health or welfare in foreign countries” to which U.S. emissions “contribute,” based on a “necessary or appropriate” “timetable for compliance.” The specificity of that guidance on stringency is quite similar to the “requisite to protect public health” phrasing that the statute’s entire regime of air quality standards is built upon. Section 115 is definitely no more vague about regulatory stringency and structure than Section 202, which at its heart says only that EPA shall prescribe “standards applicable to the emission of any air pollutant.” Yet EPA fit greenhouse gas regulations for motor vehicles comfortably within that provision, despite the lack of detail on regulatory stringency. By comparison, Section 115’s prescriptions to adequately control the U.S. contributions to foreign endangerment are by far plainer and more specific.

Third, Nathan contends that Congress simply could not have intended to grant EPA independent and broad authority to regulate international air pollution. But EPA’s authority to control international air pollution is not “hiding” in Section 115: it’s out in the open. The section is entitled “International Air Pollution.” As the legislative history bears out, since 1970 Congress saw international air pollution as a problem distinct from domestic pollution, requiring a distinct response. Section 115 was designed so EPA and the states could work together to control dangerous pollution harming foreign health and welfare. Had Congress deliberately set out in the 1970s to write a statutory provision specifically on climate change, we might imagine it would look very similar to Section 115: a call to act only after an international agency finds evidence of dangerous international pollution; a requirement for other countries to grant us reciprocal rights; flexibility for the states to craft a regulatory response tailored to their needs. Just because Section 115 has largely been ignored to date does not mean the clear authorities it offers are hidden.

Nathan acknowledges Section 115 must mean something, since Congress deliberately included it in the statute. He reads Section 115 as a way to ratchet up the stringency of other regulations, but not as an independent source of authority. However, it is not clear how this interpretation solves any of the concerns Nathan has about the section’s alleged deficiencies in defining regulatory scope or stringency. If Section 115 is used to ratchet up regulation under Section 111, for example, then by how much? If the provision doesn’t give EPA enough guidance on the stringency of independent controls for international air pollution, linking it to a domestic-oriented regulatory program will not solve the issue. The more straightforward solution is simply to assume Congress meant what the plain language says: Section 115 provides independent authority to respond to international air pollution.

Ultimately, Nathan and I agree wholeheartedly on the overarching regulatory goal, but disagree on the best means of achieving it. This debate over statutory nuances may sound like legal minutia, but at risk is whether EPA’s regulatory response to climate change will sink or swim in the courts. Where Nathan sees an elephant being smuggled illegally inside a mousehole, I see a polar bear perched plainly on top of an iceberg—the question is, will EPA use its authority to act, or let it melt away.