How the EPA Forced Congress' Hand
Last week, word surfaced that the EPA would act to regulate greenhouse gas emissions. At first glance, this news might seem like evidence that the Obama Administration would prefer to rely on the Clean Air Act (CAA) to fight climate change as opposed to getting new legislation through Congress. In fact, the news likely means the opposite. Here's why.
The first step toward regulation of carbon dioxide under the CAA is for EPA to declare that these emissions pose a danger to public health and welfare. That’s called an endangerment finding. The agency could have made this finding-- should have done it--long ago. Now, it’s likely to happen on April 2, 2009, the second anniversary of the Supreme Court ruling that explicitly gave EPA the power to regulate CO2 as a CAA pollutant.
EPA Administrator Lisa Jackson told The New York Times that she doesn’t want to spin “a doomsday scenario," but here’s the problem. It’s easy for the EPA to issue an endangerment finding, but what happens next is tricky.
The Clean Air Act was constructed to control emissions, not fossil fuel sources, so the EPA will have a hard time tackling the root of the GHG problems. There’s no real way to go upstream. Also CAA was drafted to address localized pollution and it isn’t well suited to control a global pollutant.
So the agency faces a tough choice: either squeeze carbon dioxide into ill-fitting CAA regulatory programs or face a raft of legal challenges by environmental organizations for not doing it.
Neither option will sit well with Congress, which is under increasing pressure to fight climate change. The evidence of global warming’s seriousness continues to pile up as does the need for the United States to show leadership to credibly prod China and India to action. So when the EPA makes the endangerment finding, Congress will need to take charge. And the Obama Administration knows it.
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