It took two years and a new administration, but the EPA is finally going to formally consider regulating carbon dioxide under the Clean Air Act. In the 2007 case Massachusetts v. EPA, the Supreme Court held that the Clean Air Act (CAA) was capable of regulating CO2 and ordered the EPA to give good reasons if it decided not to regulate the greenhouse gas.
But – guess what – the Bush EPA stalled, although it released a voluminous Advanced Notice of Proposed Rulemaking, in which many mid-level EPA employees explained why the CAA should be used to regulate CO2, and Bush political appointees explained why CAA regulation would prove disastrous. Then came December’s infamous Johnson memo, in which outgoing EPA Administrator Stephen Johnson said that EPA hearing boards need not consider greenhouse gas emissions when deciding whether to permit construction of new power plants.
Barack Obama hasn’t been in the White House even a month, and his approach to climate catastrophe has already been a sea change (pun intended) from his predecessor’s. A week after taking office, Obama announced that he would order the reconsideration of the Bush EPA’s denial of a waiver to California, a waiver that would have allowed California, pursuant to CAA Sec. 202, to set vehicle emissions standards stricter than the federal ones. Now the new EPA administrator, Lisa Jackson, has asked her people to prepare materials for a so-called endangerment finding, which would be the first step toward deployment of the CAA’s various tools in the fight against climate change.
Right now there are two safe bets: (1) the endangerment finding will be made and (2) the CAA will not be used to reduce greenhouse gas emissions in a comprehensive way.
I (along with many others) believe that the endangerment finding is a way to prod Congress into passing (and industry into supporting) comprehensive climate change regulation. The last thing industry wants to see is CAA regulation, which is mostly of the command-and-control variety. (It is especially amusing to read the Wall Street Journal’s apoplectic editorials on the prospect of CAA regulation – I can’t wait to see tomorrow’s!).
So the CAA boogie man is being deployed to drum up support for cap-and-trade, a market-friendly solution, which Obama is already on record as supporting. The big unknown, of course, is the extent to which the economy will sap the will for confronting a climate crisis, that, frankly, isn’t as scrary right now as double-digit unemployment and bank nationalization. That Obama ordered the EPA endangerment finding at all in this political and economic climate an act of courage.