EPA Carbon Regulations Clear First Hoop in D.C. Circuit

by Amy Sinden

A federal appeals court's decision on Friday refusing to block implementation of EPA’s first limits on carbon pollution from cars, power plants, and factories is good news for inhabitants of planet Earth. A coalition of industry groups, right wing think tanks, and the state of Texas had asked the court to grant a stay blocking EPA’s rules from going into effect while their litigation challenging those rules goes forward.  But a three-judge panel of the D.C. Circuit Court of Appeals (including two very conservative republican appointees) wisely rejected that request.

All this started back in 2007, when the U.S. Supreme Court overturned the Bush EPA’s feckless efforts to avoid regulating greenhouse gases as air pollutants under the Clean Air Act. Nearly four years later, Obama’s EPA has finally taken the first baby steps toward fulfilling its obligations under the Clean Air Act to regulate carbon dioxide and the other emissions that cause global warming. Starting January 2, 2011, certain big new and expanded power plants and other large industrial facilities will have to meet fuel efficiency standards along with the other conventional pollution control requirements. And the average fuel economy standard for new cars and trucks will increase modestly to 29.7 miles per gallon for 2012 model year vehicles.

This is not some radical new regulatory program issued by a rogue agency intent on paralyzing American industry and running the economy into the ground, as the folks challenging them would have you believe. These are modest and incremental steps that move us just a little closer toward catching up with the rest of the world with respect to the common sense goal of energy efficiency. 

The fuel efficiency standards for cars and light trucks, which will increase gradually to 34.2 mpg in 2016 still fall far short of standards in Europe, Japan, and even China, which recently announced it will require cars to reach 42.2 mpg by 2015. And the standards for power plants and factories will initially only apply to 700 of the biggest facilities around the country that would have had to go through Clean Air Act permitting anyway. This new requirement simply makes sure they’re using the best technology that is both available and affordable for increasing the energy efficiency of their operations. That’s a determination that state environmental regulators make separately “on a case-by-case basis” for each individual facility, based on what’s “achievable” for that particular facility in light of “economic impacts and other costs.” (42 USC 7479(3))

Those challenging EPA’s rules warned of all sorts of dire economic consequences if their request for a stay was not granted, claiming that (At p. 40; Inside EPA subs. required) the “burdens” imposed by the rules would bring harm “to all sectors of the American economy,” and initiate a “freeze on construction.”   But by encouraging greater energy efficiency, these new rules may well save industry and consumers money. The standards for power plants and factories have to by definition be economically “achievable” by each facility. And EPA and the National Highway Traffic Safety Administration estimate that by the 2016 model year the new fuel efficiency standards will save consumers an average of more than $3,000 over the life of a vehicle. 

The hyperbolic predictions about the dire effects of environmental regulation on the economy are, of course, nothing new. Every time EPA or another agency implements some new regulation to protect our public health, industry predicts imminent economic catastrophe. But after 40 years of environmental regulation in this country, we’re still waiting. The closest we’ve come to economic collapse in several generations was the 2008 financial crisis, and I don’t know anyone who’s claiming that was a result of too much regulation.

More troubling here is that these lawsuits are part of a larger and so far quite successful public relations campaign to create and perpetuate the myth that the Clean Air Act just doesn’t fit the climate change problem. The ultimate goal of those perpetrating this myth is to get Congress to pass a statute that would essentially reverse the Supreme Court’s holding in Massachussetts v. EPA, and remove EPA’s existing authority to regulate greenhouse gases under the Clean Air Act.

The truth is that climate change is just the kind of problem that Congress intended to address with the Clean Air Act. There is nothing unusual about applying a law decades or even centuries after it was passed to new situations that the drafters could never have imagined.  When Congress first passed the Clean Air Act in 1970, it intended that the law would continue in force for decades to come and was well aware that new scientific advances would uncover new problems posed by air pollution in the future. Accordingly, Congress spoke in broad terms, directing the EPA to regulate “any physical, chemical, [or] biological . . . substance or matter which is emitted into or otherwise enters the ambient air” (42 U.S.C. 7602(g)) whenever the agency finds that such a substance “cause[s] or contribute[s]” to “air pollution which may reasonably be anticipated to endanger public health or welfare” (42 U.S.C. 7408(a)(1)(A), 7411(b)(1)(A), 7521(a)(1)).  And Congress gave EPA a broad array of regulatory tools to address air pollutants that endanger the public health and welfare, including the kinds of “market-based tools” that policymakers have been advocating for tackling climate change, like emissions fees and cap and trade programs.

The scientific case that greenhouse gas emissions pose dire threats to public health and welfare is beyond doubt. No law is perfect, but the Clean Air Act has done a pretty good job protecting us from other air pollutants that endanger the public health and welfare for the last 40 years, preventing tens of thousands of premature deaths each year and producing benefits that EPA estimates to be more than 40 times the costs. Greenhouse gas emissions are warming the planet and pushing us closer toward global catastrophe with each passing day. It’s time to step out of the way and let EPA do its job.



© 2016 The Center for Progressive Reform