Six Myths About Climate Change and the Clean Air Act

by Daniel Farber

January 10, 2011

Cross-posted from Legal Planet.

It’s often said that the Clean Air Act is an inappropriate way to address climate change.  It would undoubtedly be desirable for Congress to pass new legislation on the subject, but the Clean Air Act is a more appropriate vehicle than many people seem to realize.  There are six common misconceptions about the statute that have led to confusion:

Myth #1:  EPA has made a power grab by trying to use the Clean Air Act. Not true — the Supreme Court held that greenhouse gases are air pollutants and directed EPA to make a scientific judgment about whether climate change is a threat to human health or welfare.

Myth #2: The Clean Air Act is only aimed at harms from breathing air pollutants. Again, not true.  Inhalation hazards are clearly important, but the statute also addresses hazards such as increased ultraviolet radiation from a weakened ozone layer; harm to paint from reacting with air pollutants; harm to lakes from acid rain; and harm to children from lead dust that has fallen on the ground.

Myth #3: The Clean Air Act addresses only localized pollution problems due to urban air pollution. Many air pollutants such as NOx and SOx can travel hundreds of miles, and harm to the ozone layer is global rather than local. Also, climate change will actually make “ordinary” urban air pollution worse.

Myth #4: EPA can only regulate if its finds decisive evidence of harm from greenhouse gases. No, the Clean Air Act takes a precautionary approach — it requires EPA to act if there is a reasonable likelihood of harm.

Myth #5:  Regulation under the Clean Air Act relies on state implementation plans, which don’t fit with an international problem such as climate change.  This is wrong on two counts.  First, the Clean Air Act has a half-dozen provisions that do not rely on state implementation plans and in fact assume that a substance is not covered by state implementation plans.  Second, even the requirements for state implementation plans make allowances for the possibility that substances may originate outside the United States.

Myth #6: Regulation under the Clean Air Act would be an economic disaster. The clearest evidence to the contrary is that EPA has been regulating American industry under this law for forty years without any noticeable harm to the economy. And the specific provisions that EPA is using all take into account whether emissions controls are economically and technologically feasible.

In short, the Clean Air Act is a broad statute that provides sensible remedies for anything which goes into the air and later causes harm. There’s nothing inappropriate about using the statute to address greenhouse gases.

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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Environmental Law and Policy at the University of California, Berkeley.

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