EPA and Global Carbon: A Debate

This is a guest post by legal scholar Jason Schwartz, of the Institute for Policy Integrity at NYU. It opens an exchange between Policy Integrity and RFF scholars discussing legal and policy aspects of greenhouse gas regulation under the Clean Air Act.  -ed

In his 2013 State of the Union address, President Obama promised that his administration would not hold its breath waiting for Congress to act on climate change, but would instead continue using existing legal authorities to cut greenhouse gas emissions.

That brings the debate over how to rein in greenhouse gases to the finer points of the Clean Air Act: what does the administration have the authority to do?

Already, the Supreme Court has interpreted that the word “pollutant” in the Clean Air Act includes greenhouse gases, and EPA has read its authority under that legislation to permit setting greenhouse gas limits for cars and trucks, and developing performance standards for power plants. But the question now on the minds of many legal scholars and environmental advocates is: Can other statutory provisions be interpreted to enable broader or more efficient or more legally sound regulatory approaches?

Last week, the Institute for Policy Integrity staked out its position in a formal petition submitted to the agency, which argues that EPA should move to increase the coverage and efficiency of its regulatory response by building a more comprehensive, market-based approach. Policy Integrity’s petition argues that certain largely ignored but potentially powerful provisions of the Clean Air Act—in particular, Section 115—are ideally suited for greenhouse gas regulation. Section 115 was designed specifically to address U.S. emissions that harm the health or welfare of foreign countries—i.e., international air pollution. Policy Integrity argues that all the statutory prerequisites to trigger Section 115 have been met for greenhouse gases: an international agency has acknowledged that U.S. emissions of greenhouse gases endanger foreign countries; and foreign countries, like Canada, have granted the U.S. essentially reciprocal rights to control any of their air pollution that might harm us. Policy Integrity concludes that Section 115 is therefore mandatory, and EPA must instruct states to develop implementation plans to adequately control their contributions to the international endangerment.

For us at Policy Integrity, the legal authority under Section 115 is clear and convincing. Others take a different perspective. This debate over the exact boundaries of EPA’s existing legal authorities is crucial to help guide the agency’s next steps. Later this week, RFF’s Nathan Richardson and Policy Integrity’s Jason Schwartz will debate the contours of EPA’s authority under certain underexplored provisions of the Clean Air Act, in particular Section 115. Stay tuned.


About Jason Schwartz

Jason A Schwartz is the legal director at Policy Integrity. Schwartz joined Policy Integrity with the inaugural class of fellows in 2008. Previously, as an associate with Pillsbury Winthrop Shaw Pittman LLP, Schwartz provided strategic counsel to municipalities and foreign governments in their pursuit of appropriations, favorable international trade policies, and homeland security assistance from the federal government. He also advised public and private clients on current legislative initiatives, concentrating on energy and environmental policies, and on disaster, terrorism, and biosafety-preparedness. Schwartz graduated magna cum laude from New York University School of Law where he was an articles editor for the NYU Environmental Law Journal. He has authored or co-authored several publications at Policy Integrity, including 52 Experiments with Regulatory Review: The Political and Economic Inputs into State Rulemaking and The Road Ahead: EPA’s Options and Obligations for Greenhouse Gas Regulation and has published scholarship on topics including climate change, biodiversity, and the regulation of bioscience research and development.

Views expressed above are those of the author. Resources for the Future does not take institutional positions on legislative or policy questions. All information contained on Common Resources is intended for informational and educational purposes and may only be used for these purposes. Please see RFF's Terms of Use for further information.

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  1. [...] the short term, will be how the administration tries to reduce greenhouse gas emissions through the Clean Air Act. Another critical part of the President’s strategy, while garnering much less attention, is fully [...]

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