EPA and Global Carbon: Can You Have it Both Ways?

This is the final post in a debate between RFF and Institute for Policy Integrity scholars over the best tools for EPA’s greenhouse gas regulations under the Clean Air Act. See Nathan Richardson’s critique of Policy Integrity’s recent petition to EPA and Policy Integrity’s response.

This debate has been about where we disagree – we have real differences over where Section 115 fits into the Clean Air Act and over how (and even whether) EPA should use it to regulate carbon pollution. But the areas where we agree are much larger than those where we disagree. We agree on most of the crucial legal questions here and on the big picture: EPA, using the Act, can and should build a robust and cost-effective regulatory regime for greenhouse gases. How effective that regime will be remains to be seen, but if EPA is smart and creative, it has powerful and flexible tools available to it. We also agree that performance standards for existing sources under §111(d) can and should play an important role in EPA carbon regulation, fulfilling EPA’s legal obligations.

Even though most scholars agree flexible GHG controls are available under 111(d), and some feel very confident they are also available under 115, there is real legal risk for any EPA carbon regulation. Litigation is a near-certainty, and predicting outcomes in the D.C. Circuit (or the Supreme Court) is incredibly hard. Many (but of course not all) Clean Air Act specialists have been surprised by results in that court over the last decade.

Therefore, it would be wise for EPA to adopt a “belt-and-suspenders” approach, couching its regulatory program in multiple sources of authority. We may disagree about which statutory provisions should be in the driver’s seat, but a prudent EPA will use all plausible arguments available to it. Similarly, EPA should be ambitious on flexibility, but should ensure that these parts of its program are clearly severable from the core regulations. This further minimizes legal risk.

Also, both observers and EPA should not neglect the important role states will play in Clean Air Act carbon regulation. Both §111(d) and §115 not only allow but mandate a large role for states. State regulators will be doing much of the difficult regulatory work, and have authority to regulate flexibly that EPA may lack.

We both enjoyed debating this topic – only part of our discussion made it into these pages. We welcome your comments.

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.

About Nathan Richardson

Nathan Richardson is a Resident Scholar at RFF, and Co-Editor of Common Resources. A lawyer by training, Nathan's research focuses on energy and climate policy, particularly regulatory tools available under US law.

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.

One Response to “EPA and Global Carbon: Can You Have it Both Ways?”
  1. James Singmaster, III, Ph.D. says:

    Time to realize that only one action gets us out of the various ruts on proposed controlling of GW/CC, and that action is to MAKE THE SUN OUR SOLENERGY SOURCE!!!!!!! I have posted many comments detailing this. By that action we go energy and CO2 negative with getting to THE HYDROGEN AGE and dumping all fossil fuel and nuclear energy. Burning hydrogen gotten by spliting water with sunlight(See Science, Dec. 7, 2012, pg 1321 for details) means no emissions, no mining and its messes, and no nuclear meltdowns and their messes. I urge RFF to make its key program center on MAKING THE SUN OUR SOLE ENERGY SOURCE. Start stressing that action instead of negative “we can’t” actions like battling fracking and oil-gas pipelines and mountain top blasting. Dr. J. Singmaster, III Environmental Chemist, Ph.D. UCDavis, 75 Ret..

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