The EPA's Prudent Response to Massachusetts v. EPA
by Ben Lieberman
Heritage Foundation WebMemo #1870
March 28, 2008
The Environmental Protection Agency (EPA) and Administrator Stephen Johnson deserve praise following the announcement that the agency will respond to the Supreme Court's Massachusetts v. EPA decision by issuing an Advance Notice of Proposed Rulemaking (ANPR) on the question of regulating carbon dioxide emissions from motor vehicles under the Clean Air Act. Taking irreversible steps toward regulating emissions would lead to the imposition of unnecessary costs on the economy, which would be all the more damaging in the current economic climate. An ANPR, which will allow for public comment without committing the agency to a specific outcome, is the best course of action.
[See brief explanation of the USSct's holding in Mass. v. EPA at: Hillary Clinton and Barack Obama Call For Large Unspecified National 'Sacrifices' and High Cost Enviro-Energy Use Regulatory 'Changes', at: http://itssdenergysecurity.blogspot.com/2008/03/hillary-clinton-and-barack-obama-call.html ].
In April 2007, the Supreme Court ruled in a 5-to-4 decision against the EPA over its refusal to regulate emissions of carbon dioxide, a greenhouse gas, from motor vehicles. Notwithstanding assertions to the contrary, Massachusetts v. EPA did not require the agency to change its position; it only required the agency to demonstrate that whatever it chooses to do complies with the requirements of the Clean Air Act. The Court stated that "[w]e need not and do not reach the question whether on remand EPA must make an endangerment finding" and that
"[w]e hold only that EPA must ground its reasons for action or inaction in the statute."
Nonetheless, some people in the environmental activist community, Congress, and the EPA wanted to read the decision as a mandate to begin cracking down on carbon dioxide. But doing so is not required under the law.
[A PERFECT EXAMPLE OF THIS ARE THE STATEMENTS THAT HAVE BEEN MADE BY THE ACTIVIST GROUP ENVIRONMENTAL DEFENSE. "In a landmark decision, the U.S. Supreme Court has ruled that the gases that cause global warming are pollutants under the Clean Air Act. The court also found that the U.S. government has the authority to regulate carbon dioxide (CO2) and other heat-trapping gases... Although the ruling does not require the federal government to act, it puts new pressure on Congress to set a national policy that caps carbon pollution — the best way to solve this problem. 'This is ultimately up to Congress,' said Environmental Defense President Fred Krupp. "The Court did all it can," he said, "but if we’re really going to fix climate change, Congress must pass a cap on carbon pollution, and soon."
See http://www.edf.org/article.cfm?contentID=5623 ].
ENVIRONMENTAL DEFENSE WAS JUST ONE OF A NUMBER OF ACTIVIST PLAINTIFFS IN THE MASS. V. EPA CASE. OTHER ACTIVIST GROUPS INCLUDED:
Center for Biological Diversity, Conservation Law Foundation, Environmental Advocates, Friends of the Earth, Greenpeace, International Center for Technology Assessment and its affiliate, the Center for Food Safety, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group.
A Cautious Federal Approach to Regulating Carbon Dioxide
Thus Far Carbon dioxide is a naturally occurring component of the air and is created by breathing and other natural processes. It is also the ubiquitous and unavoidable byproduct of fossil fuel combustion, which currently provides 85 percent of America's energy. Thus, any effort to substantially curtail such emissions would have extremely costly and disruptive impacts on the economy and on living standards.
However, that may change over the long term: The Bush Administration is supporting research into carbon-friendly energy technologies as well as means to capture and store carbon emissions underground rather than releasing them into the air. But these efforts will likely take at least 20 years to reach fruition. There are no cost-effective solutions in the interim.
For this reason, the federal government has been extremely cautious about embarking on mandatory carbon reductions over shorter time frames. In 1997, the Senate unanimously resolved to reject any climate change treaty that unduly burdened the U.S. economy or failed to engage all major emitting nations such as China and India. Although the Kyoto Protocol was signed by the U.S. later that year, neither President Bill Clinton nor President George W. Bush ever submitted the treaty to the Senate for the required ratification.
The Clean Air Act is a model of redundancy. Virtually every type of pollutant is regulated by not one but several overlapping provisions. Terms of art like "air pollutant" and "public health" appear throughout the statute, as do a number of non-discretionary duties for the EPA. Thus, any finding that carbon dioxide from motor vehicles is a pollutant that endangers public health or welfare would not only lead to regulations for cars and trucks, but also unleash many additional measures with impacts throughout the economy.
In effect, initiating carbon dioxide restrictions for motor vehicles would lead to a regulatory scheme far more extensive than those Congress has wisely rejected. The economic impacts, unintended consequences, and public anger could be unprecedented. It would leave a highly unfortunate legacy for this Administration; indeed, the cost of this de facto tax increase on businesses and consumers would undo the benefits of the Bush tax cuts and then some.
EPA's announcement is entirely consistent with the Supreme Court's decision, which neither set a deadline for the agency to act nor required it to undertake a particular course of action. The EPA is to be applauded for taking the most sensible course of action.
Ben Lieberman is Senior Policy Analyst for Energy and Environment in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.
 Edwin Meese III et al., Heritage Memorandum, "Possible EPA Regulation of Carbon Dioxide Emissions," December 13, 2007, pp. 3–4.