After several comprehensive climate regulation bills stalled in the 111th Congress, EPA has moved to regulate CO2 emissions under its Clean Air Act (CAA) authority. But climate legislation would have preempted CAA carbon regulation, and any future law would likely require a similar compromise. It might require more - other statutes can provide regulatory authority based on risks related to climate change. Is this deal worth it? That depends on what you have to give up. Unfortunately, there's no good list.
In a new paper, we tried to build one. We found there were many sources of relevant authority, but two stand out: the Clean Water Act and the Endangered Species Act. Perhaps unsurprisingly, both have their roots in the same batch of 1970s environmental legislation to which the CAA itself belongs.
Although it is a bit counterintuitive, the Clean Water Act (CWA) might be used to regulate GHG emissions. GHGs in the atmosphere—along with other air pollutants—are absorbed by oceans, which are navigable waters governed by the CWA. In addition, black carbon particles settle on glaciers and sea ice, contributing to the greenhouse effect. Under § 303, the EPA has authority to approve state “total maximum daily load” (TMDL) limits on additions of any pollutant to a body of water in that jurisdiction. If the state does not publish any TMDL limits, the EPA may publish them. Like the CAA, it has been argued that CWA regulation of GHG emissions would be an administrative nightmare due to the information costs of pinpointing the emitters responsible for localized pollution. However, the legal authority to regulate under the CWA probably exists, and it provides the EPA with significant enforcement authority, including the powers to issue compliance orders and to pursue civil and criminal penalties against violators.
A completely different approach might be taken under the Endangered Species Act (ESA). While the CAA and CWA provide authority to actively regulate GHG emissions, the ESA could be used simply to bar federal and private projects whose contributions to climate change are shown to significantly modify or degrade the habitats of species listed as threatened or endangered. When it published a special rule in 2008 listing the polar bear as threatened, however, the U.S. Fish and Wildlife Service (USFWS) noted the broad—nearly ubiquitous—power implied by the ESA § 7 requirement that federal actions not degrade listed species’ habitats. In doing so, the USFWS expressly stated that no causal connection had been established between GHG emissions from any specific government action and any negative effects on the polar bear’s habitat. While the causation burden may be relatively high, a federal court held in 2007 that when proposed federal actions are reviewed by USFWS under § 7, science on the climate impacts of the action must be considered. This implies that actions can be prohibited—at least in theory—based on their tendency to contribute to climate change that degrades a listed species’ habitat.
While providing less expansive regulatory authority than the statutes discussed above, there are other federal statutes implicated by climate change. For example, the National Environmental Policy Act (NEPA), which requires federal agencies to consider the environmental impacts of all of their proposed actions, has been interpreted by the Ninth Circuit as requiring evaluation of impacts on climate change. In addition, statutes such as the Global Change Research Act and the American Recovery and Reinvestment Act mandate federal climate science research. Finally, fuel-efficiency statutes such as the Energy Independence and Security Act not only require EPA and the National Highway Transportation Safety Administration to issue rules enhancing motor vehicle fuel efficiency, they require EPA to establish GHG performance standards for categories of renewable fuels as well.
Like the CAA, these statutes—especially the Clean Water Act and the Endangered Species Act—were not written to address GHG emissions and climate change specifically. However, they provide plausible alternatives to CAA federal climate regulation, and the relative success of any regulation under these statutes may inform any future comprehensive climate bills. In any case, policymakers will need to evaluate what exactly they are giving up if comprehensive new legislation preempts these existing authorities.
