1150 Seventeenth Street, N.W., Washington, D.C. 20036
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While it is unclear whether Congress will enact major legislation to regulate greenhouse gases via a market-based instrument like cap-and-trade, it is increasingly evident that the U.S. Environmental Protection Agency (EPA) is going to continue moving forward with its own plans to regulate greenhouse gases through an array of command-and-control
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regulations.
Under the Clean Air Act, the EPA would be forced to promulgate a vast assortment of regulations that would affect the producers and consumers of energy, much as it did for conventional air pollutants. Such regulations could include requirements for expensive retrofitting of industrial and large commercial facilities with "best available control technology" and "reasonably available control technology"; the expansion of vehicle performance standards and appliance standards; stringent reporting requirements; and New Source Review, a preconstruction permit program to assure that new emissions do not worsen air quality.
Is the Clean Air Act an appropriate instrument for the management of greenhouse gas emissions? What are the potential benefits and liabilities of continuing along the current path toward EPA administration of stringent greenhouse gas controls? At this AEI event, a panel of experts from different perspectives will evaluate and discuss these and other questions. AEI's Kenneth P. Green will moderate.
| 9:45 a.m. | Registration | |
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| 10:00 | Panelists: | David Doniger, Natural Resources Defense Council |
| Ross Eisenberg, U.S. Chamber of Commerce | ||
| Roger Martella, Sidley Austin | ||
| Bruce Nilles, Sierra Club | ||
| Moderator: | Kenneth P. Green, AEI | |
American Enterprise Institute
1150 Seventeenth Street, N.W.
Washington, DC 20036
Phone: 202-862-7165
E-mail: abigail.haddad@aei.org
American Enterprise Institute
1150 Seventeenth Street, N.W.
Washington, DC 20036
Phone: 202-862-4870
E-mail: VRodman@aei.org
WASHINGTON, JULY 24, 2009--As the Senate prepares to debate legislation which would restrict greenhouse gas (GHG) emissions, public discussion of the non-legislative carbon option--Environmental Protection Agency (EPA) regulation under the Clean Air Act (CAA)--has been limited. Roger Martella, former General Counsel to the EPA, argued at a session at AEI that EPA regulation of GHGs is coming. While Congress's path to passing carbon legislation is uncertain, the "EPA's path is a virtual certainty," he said. At AEI, scholars and guests debated what form such regulations are most likely to take.
Environmentalists see EPA action based on the CAA as a necessary adjunct to the loophole-ridden Waxman-Markey, while others argue that regulating carbon dioxide (CO2) under the CAA will lead to bureaucratic catastrophe, because even small emitters will be subject to onerous requirements. All agreed that Waxman-Markey is not a comprehensive piece of GHG legislation. Even if it becomes law, the EPA will still have the authority and mandate to regulate GHGs. There are disputes over what this means, however: some provisions of the CAA, like National Ambient Air Quality Standards (NAAQS), which mandate the ambient air levels of pollutants, do not make sense when applied to GHGs because CO2 is not a traditional pollutant: the problems arising from too much of it are unrelated to ambient CO2 levels in the air we breathe. However, while groups like the National Resources Defense Council (NRDC) believe the CAA can be used more flexibly to apply to GHGs, Martella and Ross Eisenberg of the Chamber of Commerce worry that once the CAA is invoked for GHGs, it will open the floodgates for lawsuits forcing the EPA to enforce all of the CAA provisions.
David Doniger of the NRDC is concerned that Waxman-Markey's targets are not as strict as they appear due to generous offset policies, so he sees a place for the CAA to mandate “best available control technology" for emissions producers, examining the costs and benefits of emissions reduction methods, and requiring the adoption of what it determines is most efficient. Doniger also raised concerns about a provision in Waxman-Markey which would remove the EPA's ability to apply this type of analysis to existing sources, like coal plants that are already operational. Because coal is a major contributor to GHG emissions, Bruce Nilles of the Sierra Club said that the CAA must be applied to coal plants. Waxman-Markey exempts both existing coal plants and ones which have begun the permitting process, so EPA regulation will have to fill that gap. Climate legislation that does not encompass coal plants will not reduce CO2 emissions.
Eisenberg argued that the CAA cannot be used piecemeal on GHGs: once the EPA applies the CAA to cars, lawsuits can easily force its extension to everything--a bureaucratic nightmare. Similarly, applying the CAA to GHGs will also trigger provisions that don't make any sense to apply to GHGs--like NAAQS. The CAA requires the EPA to regulate all entities producing more than 250 tons of pollutants per year, which, in the case of CO2, would apply to a million entities--large buildings, including hotels and schools, as well as 17,000 farms. The permitting process under the CAA is expensive and inconvenient for both businesses and states. This will drive the costs of construction up so high that many projects simply will not be built, and Congress needs to address this.
Doniger challenged Eisenberg, saying the argument that EPA regulation would extend too even small emitters was a "transparent rhetorical trick," because it would be a simple matter for the EPA or for Congress to increase the threshold from 250 tons to 10,000 or 25,000 tons. Further, Doniger said the NRDC and the Sierra Club have no interest in forcing the EPA to enforce the 250-tons standard. Eisenberg retorted that the Center for Biological Diversity has stated that it is ready to sue to force that extension, and that the courts are likely to require the EPA to enforce the letter of the law, including the 250 ton threshold, regardless of its own preferences, or those of the NRDC or the Chamber of Commerce.
Speaker biographies
David Doniger is the policy director of the Natural Resources Defense Council's (NRDC) climate center, focusing on policies to cut global warming pollution from power plants, motor vehicles, and other major industries. He also leads NRDC's work to complete the phaseout of chemicals that deplete the earth's protective ozone layer. Mr. Doniger rejoined NRDC in 2001 after serving for eight years in the Clinton administration, where he was director of climate change policy at the Environmental Protection Agency (EPA) and, before that, counsel to the head of the EPA's clean air program; he also worked for a year at the Council on Environmental Quality. He first began at NRDC in 1978 and worked on clean air issues for the next fourteen years, helping to win adoption of the landmark Montreal Protocol (to stop depletion of the ozone layer) and the Clean Air Act Amendments of 1990.
Ross Eisenberg is environmental and energy counsel to the U.S. Chamber of Commerce. Mr. Eisenberg is responsible for promoting the Chamber's environmental and energy policies in legislative, regulatory, and other contexts. He is also executive for the Environment and Energy Committee, the Chamber's primary vehicle for the creation and development of environmental and energy policy. Previously, Mr. Eisenberg spent five years as an environmental, energy, and insurance coverage attorney in the Washington, D.C., office of Greenberg Traurig, where he represented large and small companies on a wide range of environmental and energy matters, including permitting and compliance with federal, state, and local laws and regulations; pesticide registration; rights of way and rate-making; environmental insurance coverage; and assorted litigation.
Kenneth P. Green studies public policy with respect to air pollution and climate change, energy and the environment, transportation and the environment, and environmental chemicals as a resident scholar at AEI. His work includes analysis of Canadian environmental policy. He has authored numerous policy studies, newspaper and magazine articles, several encyclopedia entries and book chapters, and a textbook for middle-school students entitled Global Warming: Understanding the Debate (Enslow Publishers, 2002). Mr. Green has worked on both U.S. and Canadian policy, first at California's Reason Foundation, then for nearly three years at British Columbia's Fraser Institute.
Roger Martella is a partner in the Environmental Practice Group at Sidley Austin, where he advises companies on strategic approaches in the context of global climate change, handles environmental and natural resource litigation and mediation, and advises multinational companies on compliance with environmental laws. He recently rejoined Sidley Austin after serving as general counsel to the Environmental Protection Agency (EPA), concluding ten years of litigating and handling complex environmental and natural resource matters at the Department of Justice and the EPA.
Bruce Nilles joined the Sierra Club in 2002 and currently directs its National Coal Campaign, the largest component of Sierra Club's new Climate Recovery Campaign. The national coal campaign is working to reduce America's reliance on coal, as well as to end destructive mining and secure massive investments in clean energy alternatives. Mr. Nilles previously worked as a staff attorney for Earthjustice's San Francisco office and, during the Clinton administration, as counsel to the assistant attorney general for the Department of Justice's Environment and Natural Resources Division.
