Posted by: David Lungren


As EPA prepares to finalize its proposed endangerment finding for greenhouse gases under the Clean Air Act, many are wondering: doesn’t Waxman-Markey take care of that endangerment mess?  It’s true that in the bill’s vast wasteland of mandates, restrictions, and controls, there are provisions preempting specific provisions of the Clean Air Act.  One such is Section 831, prohibiting EPA from establishing a national ambient air quality standard for greenhouse gas emissions. This is indeed helpful, considering the mess such a standard setting process would cause.

Yet despite this and other narrow preemption provisions, Waxman-Markey is in no way a panacea for endangerment, as there is nothing in the bill that overturns Massachusetts v. EPA, or blocks EPA from making an endangerment finding (not to mention tying the hands of Interior and NOAA on the Endangered Species Act, or preempting GHG regulation under the National Environmental Policy Act).  What’s clear is that the bill’s authors attempted to manage some of the potential results of an endangerment finding.  But their attempt, while admirable in some respects, in no way prevents a regulatory nightmare from occurring.

What’s more, Waxman-Markey uses existing provisions of the Clean Air Act to drive emissions reductions. In Section 811, EPA is required to utilize Section 111 of the Clean Air Act to impose new source performance standards on certain sources emitting between 10,000 and 25,000 tons of GHG per year.   Also, Section 821 explicitly preserves existing Clean Air Act authority for EPA to regulate GHG emissions from mobile sources.  And to make matters worse, Section 705f(3)(C) instructs EPA to “develop strategies and approaches for achieving additional reductions” of GHG beyond those established in the act.  One would bet the farm that EPA would use this authority to mandate any and all sources not covered under Waxman-Markey, even to invoke Clean Air Act authorities otherwise preempted by the bill.

Beyond the Clean Air Act, the bill only temporarily preempts state cap-and-trade regimes.  Section 861 says that “no state or political subdivision thereof” shall implement a cap-and-trade system between 2012 and 2017.  This explicitly leaves open the possibility of states pursuing cap-and-trade after 2017, and clearly does not preempt regional cap-and-trade programs at any time.  And Section 861 explicitly preserves “any other standard, regulation, or program” to reduce GHG at the state level.  

These provisions offer a hard lesson for those hawking Waxman-Markey as the trump card for endangerment, or as a “comprehensive” solution to global warming.  No one doubts that the endangerment finding will lead to a regulatory miasma.  And Waxman-Markey will do nothing to stop it. 

Related Links:

WSJ Editorial: Terms of 'Endangerment'

National Journal: Should EPA Bow To Chamber's Demand ?