America has climate legislation on the books already. It is called the Clean Air Act. Since 2007, when the Supreme Court under Chief Justice John Roberts ruled in Massachusetts v. EPA that CO2 could be regulated under the Clean Air Act, the EPA has been working to follow court orders. Though slowed by Bush administration delaying tactics, EPA under Lisa Jackson has wasted no time working to make the law stick to CO2 pollution.
That has lit a fire under Congress, and for many lawmakers, particularly from coal states, there's the rub. While trying to craft one of the most sweeping pieces of environmental legislation in history to slow climate change, they are at the very same time working hard to severely restrict what the Environmental Protection Agency can do about global warming.
It is a difficult trick, like trying to lift a board while standing on it.
In the version of the bill that passed the House last June, lawmakers inserted language that would amend the existing Clean Air Act to prevent EPA from regulating coal plants for CO2 emissions. It's a misstep that Sens. Barbara Boxer and John Kerry do not want to repeat in the Senate.
The latest language in the Senate version of the bill shows Boxer's hand, working to provide jittery coal state lawmakers with concessions restricting the overlong reach of the Clean Air Act, while preserving the ability of the EPA to regulate emissions from largest industrial sources and the biggest polluters to protect the public interest.
The EPA already has permitting authority over coal plants to protect the public from mercury poisoning, acid rain, ground-level ozone, airborne soot and other health and environmental hazards. It is the arm of the federal government best-equipped to handle oversight of coal-fired power plants.
Yet last June, the House decided to preempt the EPA in its version of the climate bill and, as a result, it created a perverse and counterproductive set of incentives. The House's move to handcuff the Clean Air Act would encourage the nation's oldest and dirtiest coal plants to continue operating for as long as possible, with the government effectively prohibited from doing anything about it. In technical terms, that's because the House bill seeks to prohibit the EPA from factoring CO2 into New Source Review and Title V permits.
Sen. Boxer, in her chairman's mark of the Senate bill introduced last Friday, stops well short of making that drastic concession to polluters. Instead, she offers to forbid the regulation of greenhouse gases as a criteria pollutant, as a hazardous air pollutant, and under the international air pollution sections of the Clean Air Act. But she specifies that EPA authority to issue operating permits would remain for any industrial facility that emits more than 25,000 tons of CO2 a year.
Translation: EPA's current responsibility to oversee the nation's largest industrial sources of greenhouse gas pollution must stand.
The choice of the 25,000-ton threshold is no accident. It is what EPA already proposed under a "tailoring rule" it developed, published in the Federal Register and now in a period of public comment. It is what Administrator Jackson has called a "common sense" approach to using the Clean Air Act to help fight global warming, and removing the threat that EPA would regulate ridiculously small sources of CO2 emissions.
The issue of EPA oversight of large industrial facilities will continue to be a flashpoint in the development of federal climate law. Lawmakers and policy experts aligned with coal industry interests argue that continued New Source Review would clash with a cap-and-trade program's objective to let the market find the least cost solutions for emissions reductions.
But preempting EPA would effectively mean that the "least cost" solution could be running the oldest and dirtiest coal-fired power plants at full throttle, rather than building new facilities that would face stricter emissions regulations, and offsetting the emissions through ample loopholes provided elsewhere in the legislation.
That's one reason supporters of strong climate legislation see the need to let New Source Review operate simultaneously with a cap-and-trade program. They see no problem with requiring emission controls that are technologically and economically feasible within a cap-and-trade system.
Though a somewhat arcane issue that most Americans are not aware of, preserving full EPA authority over coal plants under the Clean Air Act has become the focus of effort among a number of organizations, including Sierra Club, Friends of the Earth, 1Sky and MoveOn.