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.
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 Cautious Federal Approach to Regulating Carbon
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
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
Legislatively, Congress has rejected every attempt to control
carbon dioxide emissions, from proposed provisions in the 1990
Clean Air Act Amendments to ones in the 2005 energy bill. Even the
current Congress, with its stated zeal for regulating carbon, has
done little since taking power in January 2007. One climate change
bill, S. 2191, has been voted out of committee, but its proponents
still have a number of hurdles to overcome before it stands a
realistic chance before the full Senate. The House has done nothing
beyond introducing several bills and holding hearings.
Beyond costs, there are questions about whether these measures
would accomplish anything environmentally. Even assuming the
worst-case scenarios of man-made warming, these bills would likely
reduce it by an amount so small as to be difficult to detect.
Overall, Congress has, quite rightly, recognized the potential
pitfalls of ill-advised climate measures and is acting with
The Clean Air Act: A Regulatory Pandora's
It is with this justified caution that the Administration should
approach its response to Massachusetts v. EPA. This is
especially so given the many shortcomings of the Clean Air Act as
an instrument for rationally regulating carbon dioxide
emissions-something the statute was not set up to do.
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
Under the Clean Air Act, once carbon dioxide emissions are
regulated from motor vehicles, they must also be controlled from
stationary sources under the New Source Review (NSR) program, which
applies to all pollutants subject to regulation anywhere in the
statute. And given that the threshold for regulation-250 tons per
year and in some cases as little as 100 tons per year-is easily met
in the case of carbon dioxide emissions, the agency could impose
new and onerous NSR requirements heretofore limited to major
Most emissions regulated under the Clean Air Act are trace
compounds measured in parts per billion, so these threshold levels
make sense to distinguish de minimis contributors from
serious ones. But carbon dioxide occurs at far higher levels
(background levels alone account for 275 parts per million), and
even relatively small usage of fossil fuels could meet these
thresholds. Thus, even the kitchen in a restaurant, the heating
system in an apartment building, or the activities associated with
running a farm could cause these and other entities-potentially a
million or more-to face substantial and unprecedented requirements
whenever they are built or modified.
The bottom line: The kind of industrial-strength EPA red tape
that routinely imposes hundreds of thousands, if not millions, of
dollars in compliance costs in a process that can drag on for a
year or more could now be imposed for the first time on many
commercial buildings, farms, and all but the smallest of
businesses. Not only would the costs and delays hamper the private
sector, but the paperwork would do the same to federal and state
environmental regulators, drawing resources away from more useful
Even if the EPA attempts to limit the impact to motor vehicles,
it will be hit with a number of lawsuits from environmental
organizations trying to force an expansion of its carbon dioxide
restrictions. In addition to NSR, the language used to regulate
carbon dioxide from motor vehicles could also qualify it as a
National Ambient Air Quality Standard (NAAQS), and a lawsuit
seeking to do so would be inevitable. If carbon dioxide becomes a
NAAQS, it would trigger requirements that could be met only by
severely curtailing economic activity. Other Clean Air Act
regulations could also be unleashed-and all of this without
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.
A wave of costly new regulations is the last thing the economy
needs. An ANPR is the best option at this time. It will allow for
comment on the economic implications of various options open to the
EPA for regulating motor vehicles and on other critical issues,
such as the impact of the recently passed Energy Independence and
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
Ben Lieberman is
Senior Policy Analyst for Energy and Environment in the Thomas A.
Roe Institute for Economic Policy Studies at The Heritage
Edwin Meese III et al.
Memorandum, "Possible EPA Regulation of Carbon Dioxide Emissions,"
December 13, 2007, pp. 3-4.