How Congress Threatens to Undermine the Clean Energy Future: The Clean Air Act

The new Greenpeace report Business as Usual describes "five maximum points of danger" in the House and Senate climate bills. SolveClimate will be reposting each of those arguments over the course of the week, starting today with the threat to undermine the Clean Air Act.

Dear Mr. President,

On June 28, just after the House passed the American Clean Energy and Security Act (ACES), you responded to reporters questions on the state of play of in the United States by saying, “the final legislation that emerges is probably not going to satisfy the Europeans or Greenpeace.”

This report will provide you details on exactly why we are dissatisfied with the prevailing model of climate legislation pending in both chambers of Congress. Our critical assessment is that the legislation, in the crucial near term, will be a perpetuation of business as usual in our energy sector, and it will not decrease emissions in the U.S.

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One of most important climate policy bright spots on the U.S. record over the last decade was the 2007 Supreme Court ruling in the case of Massachusetts v. EPA. The high court under Chief Justice John Roberts ruled that CO2 could be considered a pollutant under the Clean Air Act. It was a landmark decision that has pressured a laggard Congress to seriously take up federal climate legislation for the first time.

With the ruling, the Clean Air Act became the de facto climate law of the land, and it positioned the Environmental Protection Agency as the chief potential regulator of CO2 and leading arm of federal policymaking on climate disruption.

Obeying the court ruling, the agency issued a finding in the first months of the new administration that declared CO2 a danger to the health and welfare of Americans, setting in motion EPA’s regulatory apparatus, developed over decades of practice, and pointing it at CO2. With the tools available, the EPA has also issued new vehicle efficiency standards, and a national greenhouse gas reporting rule.

EPA action has lent great urgency to Congress to enact federal climate law, with lawmakers facing pressure from industry and fossil fuel interests to write the EPA out of the climate equation. In the House, members have dutifully complied by inserting provisions into the American Clean Energy and Security Act that would essentially nullify the broad impact of Massachusetts v. EPA and do damage to the public interest by limiting the Clean Air Act’s reach into climate protection.

In the months since the House passed ACES, the Senate has had time to rethink the wisdom of preempting the EPA, and in its version of the climate bill, the Clean Energy Jobs and American Power Act (CEJAPA) has thankfully refrained from handcuffing the agency. This is perhaps the most significant difference between the House and Senate versions of the legislation and a critical issue of paramount importance.

Administrator Jackson demonstrated the importance of EPA involvement in climate regulation on the very day the Senate version of the climate bill was introduced. She announced a proposed “tailoring” rule that would bring the nation’s biggest polluters responsible for 70% of U.S. emissions under a sensible regulatory regime.

EPA action, including this latest rule, has been widely regarded as an alternative to Congressional action. This is a dangerous misperception arising from a limited “either-or” mentality: either the EPA regulates CO2, or Congress does. The fact is that both are needed to get the job done.

The American Clean Energy and Security Act aims to write EPA out of climate regulation by prohibiting the agency from performing familiar duties: EPA would not be allowed to write new performance standards for power plants based on climate change effects (section 811b); and its New Source Review could not be applied to future power plants on the basis of its emissions of any greenhouse gas (section 834).