10.06.10

Senate Joint Resolution 26, the Clean Air Act, and the consequences of inaction

Background

Approximately three months ago I received this (presumably form-generated) email through a mailing list:

Our new senator, Scott Brown, is considering a resolution from Alaskan Sen. Lisa Murkowski — but written by a coal lobbyist — that would roll back Clean Air Act protections.

Sign the petition telling Sen. Brown that the people of Massachusetts support a strong Clean Air Act.

Check out this page at the Environment Massachusetts Web site:

http://www.environmentmassachusetts.org/action/global-warming/brown-clean-air2?id4=tafsent

I wrote a brief reply to the list and sender explaining the situation wasn’t as simple as claimed, responded to a short followup question, and called it a wrap. Reactions suggested that the information I communicated was new to many members of the list (all informed and intelligent people, I should note), and it occurred to me that my response might be worth publishing here. However, the resolution appeared dead on arrival, the quixotic creation of a minority senator. Editing and republishing didn’t seem worth the time, until now: S.J.Res. 26 is headed for a Senate floor vote tomorrow. To better inform readers of the full situation, I’ve taken my response, adjusted it for a broader audience, and included it here; I hope you find it informative.

Regulating greenhouse gases using the current Clean Air Act is a dangerous idea

(For readers seeing this via p.m.o: the planet software appears to strip a crucial part of the header for this section. The heading which should be displayed is “Regulating greenhouse gases using the current Clean Air Act is a dangerous idea”, not “Regulating greenhouse gases is a dangerous idea”.)

Regulating greenhouse gases under the current laws is a seductive idea with a large problem. Using current law is politically painless for Congress, avoids legislative delay, and tackles a pressing problem. The dilemma is that tackling greenhouse gases requires a scalpel, but current law provides only a hatchet. The Clean Air Act (link goes to the Act as amended through the 108th Congress) was quite patently never intended to regulate carbon dioxide, and it is wholly unsuited to the task.

The Clean Air Act’s pollution limits are nonsensical applied to greenhouse gases. Title I, Part A, §112(b) lists the initial set of hazardous air pollutants regulated by the Act. It does not contain carbon dioxide, methane, or the various other major greenhouse gases. The Act permits the EPA administrator to revise the list, but he should not do so lightly: certain consequences immediately follow per the Act’s text. The Act mandates a certain level of regulation of “major emitting facilities” of listed pollutants. What’s a “major emitting facility”? According to §169(1), it’s “any of the following [list of various industrial facilities] which emit, or have the potential to emit, one hundred tons per year” of listed air pollutants. Further, “Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any air pollutant.” How do these limits compare in the extent of their effect to the original pollutants, and sources, conceived of by the Clean Air Act? My understanding (full disclosure: I can’t find my original source for this sentence) is that past regulation for historically-listed pollutants affected a few hundred energy-generation plants; these days it affects several thousand. But for carbon dioxide, a 100- or 250-ton limit is almost nothing.

The EPA estimates in a tailoring proposal concerning the Clean Air Act and greenhouse gases that applying the 100- and 250-ton limits with respect to GHGs would require the EPA to issue 140 times as many PSD permits as it does now. The requisite man-hours would be 250 times the man-hours spent issuing permits now. The EPA currently issues 280 PSD permits each year; a 140-fold increase would require many large office builds, larger churches, tens of thousands of farms, and many other entities to get permits.

It’s difficult to say the Clean Air Act was intended for this purpose, given the incredible disproportion between limits suitable for GHGs and limits set by the Act. The Clean Air Act concerned toxic chemicals and industrial pollution present in (relatively) small quantities, as the textual limits specifically indicate, not chemicals as abundant as carbon dioxide. Moreover, was the Clean Air Act designed for pervasive, non-localized pollutants like carbon dioxide? It seems unlikely, because regulation explicitly addressed “regions”, not the entire nation.

But the 140-fold increase applies only if you respect the law’s plain text. If you ignore the text and suppose 250 doesn’t mean 250, you can alleviate the problem to a degree. That’s what the EPA proposes in the aforementioned tailoring proposal. Instead of interpreting 100 tons to mean 100 tons, or 250 tons to mean 250 tons, the EPA proposes to interpret each as 10000 tons and 25000 tons, respectively.

The misinterpretation of pollutant limits by a factor of a hundred scales back impact considerably, but it is grossly out of alignment with the plain text of the Act. What if, say, Environment Massachusetts brings a lawsuit to correct this atextual interpretation? (Not all environmental groups are happy about this administrative sleight of hand.) The EPA’s argument is that the language of the Act shows this to be a plausible alteration. It’s certainly true that that might accord with the law’s original intent (although it’s difficult to speak of the intent of hundreds of congressmen from across the country). Nevertheless, are we governed by the divined intentions behind a law, or are we governed by the law’s plain text? Laws don’t say what we think they should have said, they say what they say; 100 and 250 ton limits rather than orders of magnitude larger was certainly no scrivener’s error.

The clear conclusion motivated by this conflict between statutory text and practical effect is that the Clean Air Act was never written to apply to pollutants such as carbon dioxide normally present in amounts far exceeding statutory limits. Thus, the Clean Air Act shouldn’t be read to cover GHGs.

But then you reach a problem: in Massachusetts v. EPA, 549 U. S. 497 (2007), the Supreme Court essentially held that the EPA was required to add GHGs to their list of pollutants. The EPA is therefore required to regulate greenhouse gases according to the Clean Air Act as it stands now. They have no choice in the matter, and their hands are tied in just how carefully, delicately, precisely, etc. they can regulate by the Act itself: in essence they must regulate as if new polluters were large industrial plants such as the Clean Air Act originally targeted.

Senator Murkowski’s resolution would lift the requirement that the EPA regulate greenhouse gases using laws not carefully designed to do so. Rather than dealing with a problem through a means wholly unsuited to it, Congress would remove this power and requirement to use it from the EPA (and only with respect to greenhouse gases — all other existing regulation would remain untouched), to then later replace it with legislation specifically tailored to the goal of combating GHGs.

Conclusion

The laws available to the EPA in pursuing regulation of GHGs are entirely unsuited to the purpose, requiring heavy-handed regulation of two orders of magnitude more entities than these laws have ever addressed before. A deliberate misreading of the Clean Air Act curtails the required regulation’s breadth, but that misreading is subject to challenge in courts. If that misreading is corrected, as it should be, we are in for a world of pain: permits cost hundreds of thousands of dollars and consume a few hundred man-hours of regulatory agency time — each. The EPA will be completely swamped if the Clean Air Act is applied, under Massachusetts v. EPA, according to the Act’s text.

The right thing to do to regulate greenhouse gases is to construct a regulatory regime specifically designed for them, and to strip authority over that problem from the Clean Air Act.

6 Comments »

  1. Jeff, you’re right about the CAA being a hatchet. But, few people are saying the CAA is a good tool to regulate GhGs. Removing the EPA’s power to regulate GhGs makes passing a comprehensive climate bill less appealing for those who don’t see it as a problem. But, when your choice is the “hatchet” of the EPA or sensible climate legislation then it’s a different calculation. And there are many of us who support Waxman-Markey type legislation who think the EPA hatchet is better than nothing at all. That’s why the language of many of the climate bills will include language to limit EPA control–but only if the climate bill passes.

    Comment by Fritz — 10.06.10 @ 07:01

  2. I’d like to echo the other commentator here. The Clean Air Act is not the best tool to regulate greenhouse gasses, but it is the only one currently available to to federal government. If polluters and their lobbyists are faced with a choice of letting the EPA and Obama administration regulate emissions, or coming to the table to negotiate a comprehensive climate bill, they are more likely to come to the table, and with them at the table, it is more likely that a bill passes in this congress.
    It is also worth noting that the EPA using the CAA to regulate stationary sources of CO2 (power plants, cement factories, oil refineries, etc) is really not that bad of an idea. The EPA has been using the clean air act to regulate other things coming out of the smokestacks for decades and will continue to do so into the future. Why not use tried and true regulators, and regulatory infrastructure to tackle yet another pollutant coming from the same source?

    Comment by w — 10.06.10 @ 10:25

  3. The contention is not about the specific mechanisms of the Clean Air Act, or about who enforces them, but about using it — and in particular its limits — for a set of pollutants which don’t comport with the other pollutants the Act regulates. Those mechanisms could be adopted in a new act, with substantially different pollution limits no longer encompassing hundreds of thousands of entities entirely ill-prepared to deal with the hassle, and the problem would disappear. The EPA could still administer regulation, and regulatory infrastructure could be reused to do so, under a new bill which treated the matter more carefully.

    I’m not so sure holding the hatchet over the necks of polluters is actually an effective tactic. After all, in this case hasn’t the EPA deliberately dropped the hatchet? That doesn’t seem like using an ill-fitting law to hasten change to me. Past that, are you suggesting that it is appropriate for legislators to use intimidation and threats (soft-spoken to be sure, but still aggressively coercive tactics) when drafting laws? That power, used wrongly (as will inevitably happen), corrupts. (It arguably has, already, given the demagoguery to which politicians routinely resort.)

    It is exceedingly unfortunate that while the rhetoric of minimalism holds sway in the judicial sphere (or at the very least receives considerable lip service), it has not yet caught on in the legislative sphere. If one omnibus bill instead came as a series of smaller bills, it would be easier to make improvements without getting bogged down in fixing every little thing, all at once, for all time (which of course would never happen, but with one large bill it becomes even more difficult to make course corrections). Readers in the software industry will note obvious parallels between the software design/release process and the legislative process, in these respects.

    Comment by Jeff — 10.06.10 @ 14:24

  4. Why are we talking about regulating carbon dioxide at all. Carbon Dioxide is not the danger it is purported to be. In fact too much carbon dioxide is being generated just discussing this. Shut down the EPA and let the states deal with perceived pollutants as they see fit. Just as the constitution allows.

    Comment by Jim — 13.06.10 @ 16:56

  5. Jeff: the reason you have “omnibus” (comprehensive) bills like this is because unlike judicially, legislative you have to form coalitions across items, not just on a case. There are plenty of Congressmen who want a Climate bill. However, they can’t agree on which industries to regulate and which to give allowances to. It’s about finding a coalition and compromise, something you can’t really do on a bunch of smaller bills.

    As for threats, I don’t know. Anyone in any government… or large corporation… or any organization government or not with power can make threats based on its future actions. Of course this is most harmful when done by monopolies. I understand your point… but anytime Congress tries to regulate pollutants (and I’d hope you agree that at least some pollutants are worth regulating at the supra-state level) it is always taken as a threat by those who emit the most of that pollutant. That cannot be helped.

    Jim: That’s silly. Firstly, we are talking about greenhouse gases, more generally. Secondly, pollution is not about substances, it’s about substances, amounts, and locations. The argument is that the introduction of vast amounts of GhGs by humans is changing the climate and therefore ecosystems and organisms. The only difference between GhG pollution and other pollution is scale. It takes a small amount of radon to be a pollutant. It takes a medium size of nitrogen and phosphorus runoff to be a pollutant (Chesapeake/Gulf dead zones) and it takes a lot more GhGs to increase the heat trapping greenhouse effect. All of these are naturally occurring and at least the latter two are very important to life. But, in the right quantities in the right places they can be problematic pollutants. Now, you may disagree if it’s anthropogenic or the extent to which we can adapt.

    Also, like the Courts, I’ve never particularly subscribed to the idea that if something isn’t in the constitution then only the states can do it. Necessary and proper has been interpreted and nothing about it is going to change soon.

    Comment by Fritz — 14.06.10 @ 07:35

  6. I’m well aware of the reason omnibus bills supposedly need to exist. I’m not convinced it truly is the case that bills must be boxed up in this way. I recall hearing somewhere that Johnson got the Civil Rights Act passed through last-minute backroom dealing in which he promised to support a number of wavering congressmen’s subsequent legislative proposals. Note subsequent, not merely aggregated with the Civil Rights Act — which was itself a mere twenty-six pages or so. The Civil Rights Act is proof that landmark legislation need not substantially overreach its concerns to pass.

    I remain unconvinced that, given the plain textual limits on pollutants expressed in the Clean Air Act, it can validly be read to apply to greenhouse gases, regardless of its effectiveness (or ineffectiveness) in combating greenhouse gas pollution. It still seems to me that all arguments for doing so concede that the language of the Act must be ignored; that’s unacceptable. It merely encourages more legislative sloppiness. If mistakes made in the drafting process have no effect because deficient wording will simply be reinterpreted into coherency, why should legislators waste time being careful when they could be passing mandates on other issues?

    Comment by Jeff — 15.06.10 @ 10:40

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