In the News

Vitter also said McCarthy and the EPA have worked with left-leaning environmental groups on crafting stringent carbon regulations and hiding this from Congress.
He sent a letter to McCarthy in March to ask her about the intent of the Institute for Policy Integrity at the New York University School of Law to threaten litigation as a way to “force a cap-and-trade system on the transportation fuels sector” – a process known as “sue and settle.”

“Such a process is wholly unacceptable, especially considering the administration’s pattern of excluding states and economically impacted individuals and businesses from important rule-making decisions,” Vitter wrote.

Republican panel members are also likely to quiz McCarthy on whether EPA might use the Clean Air Act to implement a cap-and-trade system for transportation fuel, even though the agency has announced no such plan.

The Institute for Policy Integrity at New York University has threatened to sue EPA if it does not consider implementing the rule. The think tank says a market-based program of that kind would be the best way to reduce emissions from the transportation sector while limiting cost. It would ultimately apply to fuels for all motor vehicles and aircraft.

But Vitter, Inhofe and Sens. Deb Fischer (R-Neb.) and Roger Wicker (R-Miss.) responded late last month by demanding that McCarthy say whether the agency planned to quickly accommodate IPI’s petition (E&ENews PM, March 28).

As Michael Livermore of the Institute for Policy Integrity, a group that favors cost-benefit analysis, argues: “the fact that cost-benefit analysis is brought in by the courts for financial reform in a way that is contentious, unclear, without a lot of guidance, and in a politically charged way, entrenches views on opposite sides of the debate.”

GOP senators used a New York University-based think tank’s push for a greenhouse gas cap-and-trade system for the fuel sector’s emissions to criticize U.S. EPA as overly eager to settle lawsuits filed by environmentalists seeking more regulations.

Four members of the Senate Environment and Public Works Committee said in a letter to EPA that using the Clean Air Act’s Section 211 to regulate greenhouse gases would “expand environmental regulation beyond original intent of the law and could have detrimental effects on the livelihoods of our fellow Americans.”

If you don’t believe that human actions are leading to a warming planet, nothing will convince you that carbon controls are useful — if it ain’t broke, as they say, why pay to fix it?

But for the rest of us who know that there is near unanimity among climate scientists that temperatures are rising and humans are the cause, the choice isn’t whether to act but how to most efficiently lower our pollution.

With climate legislation stalled in Congress, environmental groups have been refocusing their efforts on EPA rulemaking and litigation in efforts to speed up greenhouse gas regulation. In a recent rulemaking petition, the Institute for Policy Integrity (the Institute) seeks to compel EPA rules under three separate sections of the Clean Air Act. The Institute first argues that Section 115 of the Clean Air Act, a never-before-used provision addressing international air pollution, requires EPA to order all 50 states to modify their state-level implementation plans to address greenhouse gas emissions.

Some legal experts warn that under the status quo – four Republican appointees and three Democratic appointees among active judges – Obama’s plan to bypass a deeply partisan Congress to address climate change using existing authorities will not be easy.

“There is really no moving forward with regulation without going to the DC Circuit and the decision of the court could really have major consequences,” said Michael Livermore, executive director of the Institute for Policy Integrity at New York University’s law school.

This debate has been about where we disagree – we have real differences over where Section 115 fits into the Clean Air Act and over how (and even whether) EPA should use it to regulate carbon pollution. But the areas where we agree are much larger than those where we disagree. We agree on most of the crucial legal questions here and on the big picture: EPA, using the Act, can and should build a robust and cost-effective regulatory regime for greenhouse gases. How effective that regime will be remains to be seen, but if EPA is smart and creative, it has powerful and flexible tools available to it. We also agree that performance standards for existing sources under §111(d) can and should play an important role in EPA carbon regulation, fulfilling EPA’s legal obligations.

As Nathan Richardson rightly notes, debate over the best legal tools to craft climate regulations can sound dry, yet the real-world implications could not be more vital. At stake are the breadth, efficiency, and legality of EPA’s response to the most pressing environmental crisis of our time. I thank Nathan for hosting this online debate to explore the boundaries of EPA’s statutory authority.

Policy Integrity staked out our position in a recent petition to EPA: Section 115 provides straightforward authority to build comprehensive, market-based regulations. Other provisions of the Clean Air Act are also available, but they are no more legally sound and are less comprehensive. In Nathan’s response to our petition, he argues that Section 115 presents unnecessary legal risks, and claims that the provision is too short, too scant on details, and too untested to provide independent regulatory authority. Instead, Nathan sees Section 115 as a subordinate supplement to other, more established regulatory programs.

Jason Schwartz and Michael Livermore at Policy Integrity are first-rate Clean Air Act scholars and I’m honored to have the chance to debate with them. We agree on the most important points – above all that the EPA has ample authority under the existing statute to craft real, flexible, and effective carbon regulation. We do disagree some over the best way to get there. For some, this seems like legal arcana, but it matters. EPA’s choice of regulatory tool will do more than any other decision to shape the environmental ambition, cost-effectiveness, and legal vulnerability of its carbon regulation.