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 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 […]
Victor Flatt | January 6, 2011
On Dec. 30, the EPA announced that it was partially disapproving the Texas State Implementation Plan (SIP) that would not allow it to issue PSD permits for greenhouse gases that were now “subject to regulation.” Continuing its resistance to all things EPA, Texas filed a request for an emergency stay of the disapproval in the DC […]
Matthew Freeman | January 5, 2011
One of the top agenda items for the new Republican majority in the House of Representatives will be pressing an anti-regulatory bill they’re calling the REINS Act. The bill would subject newly minted regulations protecting health, safety, the environment and more to a requirement that Congress adopt resolutions of approval within 90 days of the […]
Ben Somberg | January 5, 2011
Representative Darrell Issa, the incoming chair of the House Oversight and Government Reform Committee, has made his views on regulations fairly clear. Earlier this week, for example, he scored headlines when his office gave out a document publicizing the issues his committee will take up. From the document: “The committee will examine how overregulation has […]
Daniel Farber | January 4, 2011
Cross-posted from Legal Planet. Although there will be many flashing lights and loud noises, 2011 will primarily be a year in which various events that are already in play evolve toward major developments in 2012. Litigation. The one exceptional major development in 2011 will be American Electric Power (AEP) v. Connecticut, the climate nuisance case […]
Yee Huang | December 30, 2010
a(broad) perspective In 2010, natural (and unnatural) environmental disasters around the world killed hundreds of thousands of people, displaced millions more, and caused significant air and water pollution as well as human health catastrophes. Insurance giant Swiss Re estimated that these disasters caused an estimated $222 billion in losses. Disasters are overwhelming to begin with, but for […]
Yee Huang | December 29, 2010
Today EPA released the final Chesapeake Bay Total Maximum Daily Load (TMDL), which is a cap or limit on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the District of Columbia and the six Bay Watershed states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The Bay TMDL culminates […]
Yee Huang | December 28, 2010
The 111th Congress saw two attempts to provide legislative impetus to restore the Chesapeake Bay. Now that the lame duck session has ended, the results are in: The Chesapeake Clean Water and Ecosystem Protection Act, S. 1816. Introduced in October 2009 by Sen. Ben Cardin (D-MD), the bill would have reiterated EPA’s authority to establish […]
Yee Huang | December 28, 2010
Tomorrow, the Environmental Protection Agency will issue its final Total Maximum Daily Load (TMDL) for the Chesapeake Bay, setting a pollution cap for the Bay that is comprised of 92 individual caps for each of the tributary segments that flow into the Bay. The Bay TMDL represents another important milestone in the long-running effort to […]