Clean Air Act Proving Effective in CO2 Regulation, Lawyers Tell Their Corporate Clients

Observers wonder if EPA's measured momentum rightly puts Congress in the back seat

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WASHINGTON—U.S. senators have emitted their fair share of carbon dioxide explaining over and over why they need to assume the leading role in limiting pollution from greenhouse gases. But the longer senators dawdle, the more the Clean Air Act—which some legislators revel in deriding—seems to upstage their supposed superiority.

Some observers are even questioning Congress’s relevance as the Environmental Protection Agency gains momentum with its current measured approach to curbing heat-trapping gases.

For instance, at least one nationwide law firm that advises major clients on the environmental front praises the Clean Air Act as a proven and effective tool for regulating carbon dioxide and other greenhouse gases.

Ballard Spahr attorney Robert McKinstry Jr. elaborated on the details for his audience of corporations in a June memo he co-authored titled EPA Gives Shape to Economy-Wide Greenhouse Gas Regulation.

It contains a handy table of federal regulatory actions to control greenhouse gas emissions that are already rolling, which McKinstry calls “just the first wave” of measures that “will affect most sectors of the economy and many fields of legal practice.”

Taken together, the force of these measures puts Congress in the back seat and begs the question whether that might not be the best place for lawmakers after all.

Yes, Congress needs to weigh in somehow, McKinstry told SolveClimate from Ballard Spahr’s offices in Philadelphia. He pointed out, however, that the Clean Air Act contains not one but two clear and independent routes EPA officials can use to even enact a federal cap and trade system.

“A lot of large companies disagree with the Chamber of Commerce,” McKinstry said in an interview. “They would like to see the certainty that a cap and trade system provides.”

McKinstry’s 17-page legal memo explains that EPA has repeatedly stated that it would favor an amendment to the Clean Air Act specifically addressing greenhouse gas emissions.

“Although legislation would remove certain uncertainties, speed the course of regulation and reduce the likelihood of successful challenges in court, it appears increasingly clear that comprehensive regulation of greenhouse gas emissions will occur regardless of whether Congress acts or not,” he wrote.

“EPA regulatory actions, actions by states and potential liabilities will all put a price on carbon emissions and create business risks and opportunities that should play a part in corporate planning.”

In an ideal world, Congress would be shouldering the responsibility of controlling greenhouse gases just to make for a smoother transition, McKinstry said. That’s because EPA’s decisions are subject to a seemingly endless cycle of appeal and litigation.

EPA Chugging Along

Under the Obama administration, the subtext at EPA is that Congress should be crafting climate change legislation but that the agency will move ahead in the meantime, McKinstry explained.

While progress was snail-like after the spring of 2007 when the U.S. Supreme Court ruled that EPA has the authority to regulate greenhouse gases, the agency picked up the pace after Lisa Jackson took over as administrator.

Since issuing the endangerment finding in December 2009—which officially found emissions of mobile sources to threaten human health and welfare—EPA has taken several steps forward with insider-baseball names such as the mobile source rule, the trigger rule, the tailoring rule and the reporting rule.

Briefly, these rules mean industrial sources of greenhouse gases will be regulated through a process that rolls out gradually over the coming years. For example, the tailoring rule will require about 550 large industrial manufacturers and landfills to obtain permits for emissions beginning in January 2011, with about 900 additional polluters coming under regulatory review each year thereafter.

McKinstry has been in the thick of the climate debate as it has ping-ponged among the legislative, judicial and executive branches of government. He heads up Ballard Spahr’s climate change and sustainability initiative.

Along with several other attorneys, he represented a group of 18 climate scientists who submitted amicus briefs to the Supreme Court supporting Massachusetts and other petitioners in Massachusetts v. EPA. He also offers legal counsel as a senior adviser for the nonprofit, nonpartisan Center for Climate Strategies. Since 2004 the Washington, D.C.-based center has worked to integrate and develop climate policy at the state and federal levels.

Cap and Trade System Needs to Adapt to Geography

While the Clean Air Act gives EPA two avenues for creating economy-wide cap and trade measures, just plopping them into place isn’t enough because that won’t empower states.

If certain technical adjustments are made, McKinstry pointed out, EPA should be incorporating state-directed and geography-dependent cap and trade solutions. These include undertakings such as the Regional Greenhouse Gas and Western Climate initiatives.

Ten northeastern and Mid-Atlantic states participate in RGGI, which developed a model rule to establish a cap-and-trade program for electric utilities. WCI involves seven states and four Canadian provinces in a regional emissions cap for multiple economic sectors and a cap-and-trade system.

Ideally, Congress would complement any EPA action with legislation that comprehensively covered changes to tax laws and measures to encourage energy efficiency, clean energy sources and a countrywide renewable portfolio standard, McKinstry said.

Antsy for a Bolder EPA and Congress

During a Tuesday meeting at the White House, President Obama told a bipartisan gathering of senators that he is committed to putting a price on carbon by the end of the year. The Senate has yet to decide if it will proceed with the economy-wide cap-and-trade bill introduced by Sens. John Kerry, D-Mass., and Joe Lieberman, I-Conn., or perhaps scale it down to cover only the utility sector.

As they are worded now, both the Senate’s American Power Act and the House-approved American Clean Energy and Security Act have some environmental organizations on edge.

“Both bills set arbitrary standards for greenhouse gas emissions,” Kassie Siegel, senior counsel with the Center for Biological Diversity, said in an interview. “This should be a scientific decision, not one done through political horse trading.”

The California-based nonprofit has joined forces with a like-minded group,, in petitioning EPA to use its authority to set a science-based national pollution cap for greenhouse gases under the Clean Air Act.

Their petition seeks to have carbon dioxide and six other greenhouse gases designated as “criteria” air pollutants and atmospheric carbon dioxide capped at 350 parts per million, the level leading scientists say is necessary to avoid the worst impacts of global warming. To date, EPA has designated six “criteria” or “priority” pollutants: particle pollution, ground-level ozone, carbon monoxide, sulfur oxides, nitrogen oxides and lead.

“The Clean Air Act has been wildly successful,” Siegel said. “Our stance is that the best way to save the law is to use the law. EPA should be moving confidently and boldly. The agency is moving far too slowly.”

As written, both climate bills remove existing safeguards and replace them with substitutes that don’t solve the problem of global warming, she said. That’s why EPA needs to lead with its science and Congress has to supplement the Clean Air Act with legislation that is “strong and additive.”

“We want to see EPA use all the tools in its toolbox,” Siegel emphasized. “This is not an ‘either-or’ question. It’s an ‘everything-and’ question.”