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AMBIENT ERROR
April 13, 2010

Posted by: David Lungren David_Lungren@epw.senate.gov

EPW POLICY BEAT: AMBIENT ERROR

Establishing a national ambient air quality standard (NAAQS) for CO2 is feared possibly more than any other potential greenhouse gas regulation under the Clean Air Act (CAA).  A CO2 NAAQS would twist the CAA into knots and spread EPA's regulatory tentacles into every corner of the economy.  And according to a recent report, there's no avoiding it.

EPA and some environmental activists say a GHG NAAQS won't happen, because EPA possesses the legal flexibility to avoid it.  EPA has discretion, they believe, to craft greenhouse gas (GHG) regulations in the most cost-effective and rational manner.  But as Nathan Richardson of Resources for the Future argues in a December 2009 study, EPA "likely lacks much of this claimed flexibility, and will probably be forced by interconnections and statutory triggers built into the CAA to set national ambient air quality standards (NAAQS)" for GHGs. 

In "Greenhouse Gas Regulation Under the Clean Air Act: Does Chevron v. EPA Set the EPA Free?," Richardson explains that the "interpretation of CAA language on which the EPA relies for the flexibility it claims" was "explicitly rejected in federal court more than 30 years ago in NRDC v. Train."  The legal basis for EPA's belief that "a court would decide the issue differently now...is likely insufficient."

That's because a finding that GHG emissions from cars are pollutants that "endanger" public health and welfare-a finding EPA made last December-cannot easily be separated from the endangerment language in Sections 108-110 of the CAA, where the process for setting and implementing the NAAQS is found.  According to Richardson:

The endangerment provision in §108(a)(1), the entry-point for the expansive NAAQS regulatory program, is structured in broad language that is very similar to that in other endangerment provisions and, therefore, leaves little room for the kind of discretionary gymnastics described in the previous paragraph.  The EPA's attempts to do so have resulted in litigation and controversy, and the CAA's apparent inflexibility in this regard presents a serious problem for regulation of GHGs under the Act.

In Richardson's view, the EPA "very likely will be forced" by its endangerment finding for GHGs from cars to issue a similar finding under Section 108, "which will then trigger regulation of GHGs under the NAAQS framework detailed under §§109-110. The EPA would still retain some discretion in deciding how to implement the NAAQS, but the option of choosing not to issue a NAAQS for GHGs will very likely be unavailable." [Emphasis added]

Not to worry, says NRDC: EPA can only be forced into this regulatory morass if sued.  NRDC's David Doniger testified before the House Energy and Commerce Committee in 2008 that he was unaware of any "environmental organization or state that presently supports use of the NAAQS system for greenhouse gases or intends to pursue future legal action toward that end under Sections 108 or 109 [of the Clean Air Act]." 

How times have changed.  On December 2, 2009, the Center for Biological Diversity (CBD), along with "350.org," petitioned EPA to set a NAAQS for CO2.  "Petitioners request that EPA declare carbon dioxide a ‘criteria' air pollutant pursuant to the Clean Air Act, and set a national pollution limit (National Ambient Air Quality Standard, or NAAQS) for carbon dioxide at no greater than 350 ppm-a level that accurately reflects the most recent scientific knowledge."   Not stopping there, the petitioners called on EPA to "similarly designate other greenhouse gases as criteria pollutants and establish pollution caps for those gases at science-based levels."

Again, not to worry, according to Doniger: Section 108 gives EPA a way out.  Under Section 108, standards must be set for air pollutants, the emissions of which, in the Administrator's judgment, "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare"; and "the presence of which in the ambient air results from numerous mobile or stationary sources." 

It is the third criterion that provides the exit strategy: the pollutant in question must be one "for which air quality criteria had not been issued before December 31, 1970, but for which [the Administrator] plans to issue air quality criteria under this section."  Voila: the Administrator has no plans to issue air quality criteria for CO2, so no NAAQS standard is required.

Yet, as Richardson explained, this discretionary interpretation of Section 108 "was rejected by a federal appellate court more than 30 years ago."   This is something Mr. Doniger is probably familiar with.  In NRDC v. Train (1975), the Second Circuit Court of Appeals "adopted a much narrower interpretation that denied the EPA any discretion under the provision." "This interpretation," Richardson noted, "has not been challenged by the agency or any other party since then."

Congress recognized the oncoming GHG NAAQS disaster, and EPA's authority in this vein was removed in the Waxman-Markey bill.  Of course surrounding that provision was a bill rife with taxes, mandates, and bureaucracy, effectively exchanging one problem for many others.  The bill passed the House last year, but it wouldn't pass the House now and has no chance in the Senate. So the authority still stands. 

How will a GHG NAAQS work?  GHGs are "ubiquitous and cause little harm today," Richardson wrote.  Should a GHG NAAQS be set above or below current atmospheric levels?  Unlike the local and regional pollutants currently regulated under the NAAQS, GHG concentrations are "uniform everywhere."  "States' contributions to emissions are also relatively small," Richardson observed, and "even if a state reduced its GHG emissions to zero, it would have almost no effect on global GHG concentration or on the risk of climate change." [Emphasis added]

Pointing out these difficulties is "cynical," according to the CBD petition.  CBD argued that the NAAQS program is "ideally suited" to address climate change.  Unfortunately for jobs, consumers, and the economy, we may well have the opportunity to see whether CBD is right. 

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