A section under the Clean Air Act could enable the EPA to design a cost-effective, flexible program to address greenhouse gas emissions, according to a working paper released in October by the Nicholas Institute for Environmental Policy Solutions at Duke University.
CAA Section 111, which regulates sources of greenhouse gases under the New Source Performance Standards program, appears to provide the EPA with the best means to create a system that avoids a "glorious mess," according to the paper. In addition, Section 111 is consistent with the statutory language of the CAA and legal precedent.
The paper, "Avoiding the Glorious Mess: A Sensible Approach to Climate Change and the Clean Air Act," takes its title from U.S. Rep. John Dingell, D-Mich., former chairman of the House Energy and Commerce Committee, who said in 2008 that regulating greenhouse gases under the CAA rather than new federal climate legislation would lead to a "glorious mess."
Analysts, legal experts and scholars gathered in Durham, N.C., in March to discuss how to regulate greenhouse gas emissions under the CAA. "We wanted to get experts in the same room, off the record, to have an open discussion about the options the EPA faces and how that may affect different stakeholder communities," explained Jonas Monast, senior policy counsel at the Nicholas Institute. And Monast found "pretty broad agreement" that while congressional action is the best choice for dealing with greenhouse gases, without it the EPA "has a legal duty to act and regulate greenhouse gases."
Why Section 111 would work
The meeting examined three primary options in addition to Section 111 for regulating greenhouse gas emissions from large stationary sources under the CAA: Sections 108-110 (i.e., the National Ambient Air Quality Standards program), Section 115 (international air pollution) and Title VI (protecting the stratosphere).
One of the key advantages of Section 111 is that it appears to be politically viable. "The EPA's most immediate challenge is more political than legal," Monast said, explaining that the paper focuses on how the agency can address climate change while maintaining political support. "The EPA is very aware of the political challenges that it faces and it has been moving forward slowly and methodically, starting with the areas where they are on the strongest legal ground first." Thus, creating a cap-and-trade system under Section 111 "may happen further down the line," he said.
Another advantage of Section 111, according to the paper, is that it allows costs to be considered when designing a regulatory program. The section also requires EPA to regulate sources of pollution rather than the pollutants, such as greenhouse gases in the atmosphere, which the paper said will allow the agency to design appropriate regulatory programs for different sectors of the economy.
"The EPA may regulate GHGs under Section 111 relatively quickly, achieving environmental benefits associated with early action while also providing GHG emitters with regulatory certainty," the paper said. "[S]ection 111 provides the EPA with the discretion to tailor the regulatory approaches to specific sectors of the economy, and to employ market-based mechanisms. This flexibility could allow the agency to build upon recent congressional efforts to limit GHG emissions."
Section 111 defined
According to EPA, Section 111 requires the agency to develop regulations for categories of sources that cause or significantly contribute to air pollution that may endanger public health or welfare. The regulations apply to each new source within a category without regard to source location or existing air quality. Section 111(d) requires states to develop plans for existing sources of a pollutant for which there is no national ambient air quality standard whenever the EPA promulgates a standard for a new source. State plans are subject to approval by EPA. Examples of source categories subject to 111(d) include existing municipal solid waste landfills and municipal waste combustors.
A standard for emissions of air pollutants is one of the key elements of a "standard of performance." It also must reflect the degree of emission limitation available and the best system of emission reduction. Elsewhere, the CAA defines "standard of performance" as "a requirement of continuous emission reduction, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction."
EPA, Congress wrestle with carbon emissions regulations
Waxman-Markey, a climate change bill that would cap the CO2 emissions of U.S. electric utilities, passed in the U.S. House of Representatives by a slim margin in June 2009. The Senate has yet to pass any climate change legislation. Sen. Jay Rockefeller, D-W.Va., has pledged to push legislation he introduced in the Senate in March that would suspend the EPA's potential regulation of CO2 emissions from coal-fired plants for two years. Few, however, expect the 111th Congress to enact any major law requiring greenhouse gas reductions before the close of this year.
In April 2007, the U.S. Supreme Court ruled that EPA was wrong in concluding that it lacked the legal authority to regulate greenhouse gas and in refusing to exercise that authority. EPA must work on creating regulations, although Congress could remove its authority to regulate greenhouse gas emissions.
"[T]he EPA is left with the delicate task of regulating GHGs, as required by current law, but doing so without provoking such political kickback that Congress strips its authority away. Layered upon that challenge is a widespread perception that the CAA is an inappropriate mechanism for addressing a globally mixing pollutant such as carbon dioxide, the chief GHG," the paper said.
