Using the Clean Air Act to Jump-Start Climate Action

The urgency of the current situation cannot be overemphasized: The latest scientific research tells us that global warming is accelerating at a rate beyond previous expectations, and that the window for a timely response is closing quickly. Despite some political efforts to muddy the waters, there is scientific agreement that greenhouse gas emissions must now be stabilized within seven years or the world will face unpredictable climate-related catastrophes -- far beyond the serious impacts already in evidence globally.

Climate action in the United States -- at a federal standstill for the last eight years -- is expected to finally move forward with the inauguration of a new president in January. What preparations can be made now to assure action within the first 100 days? Congress is expected to try to move cap-and-trade legislation again while also addressing related issues: energy, transportation, economic policy, and conservation. But the key question remains: Is there a leadership strategy that the next president can initiate to strengthen the likelihood of success, particularly during this time of economic crisis?

The latest science demands a strategy that provides a policy pathway that will begin to reduce emissions immediately, and a political pathway that avoids continued gridlock. Relying on a single piece of legislation runs the risk of failing to meet one or both of these nonnegotiable requirements. It could easily take more than seven years to get a federal carbon-trading mechanism to stabilize emissions. It's also possible that congressional compromise will water down cap-and-trade emissions targets and, worse, undermine existing state and regional efforts.

There is, however, a promising alternative strategy increasingly under discussion by a growing number of legal authorities, politicians, and policy experts: Activate the Clean Air Act -- arguably the most cost-effective environmental law in the U.S. -- and use it to control greenhouse gas emissions. Such a move would not require controversial new legislation and would be on solid legal footing, thanks to the U.S. Supreme Court's landmark 2007 decision, Massachusetts v. Environmental Protection Agency (EPA), which affirmed that carbon dioxide emissions are a pollutant as defined by the Clean Air Act and can therefore be regulated by the EPA.

That ruling is now informing Sen. Barack Obama's thinking. Jason Grumet, his energy adviser, said this month that if elected president, Sen. Obama would declare CO2 a dangerous pollutant under the Clean Air Act and use the act to limit emissions. Experts do not dispute the executive branch's authority to do so.

"EPA has the authority to regulate sources of pollution directly and could set emissions standards for new stationary sources of pollution -- such as coal-fired power plants, oil refineries, and steel and concrete plants -- in relatively short order," said Lisa Heinzerling, professor of Law at Georgetown University Law Center, who wrote the petitioners' brief in Massachusetts v. EPA.

She and many other legal experts believe that under the Clean Air Act, the EPA can also administer a national cap-and-trade program by writing federal rules to unify independent regional carbon markets. Already, 23 states and four Canadian provinces are forming such markets, with 10 additional states being brought into the process as observers. Experts believe the EPA can promulgate an additional set of regulations that would control transportation emissions -- everything from cars and trucks to boats and airplanes.

"The high court essentially said the United States currently has a law for regulating carbon dioxide emissions, and it's called the Clean Air Act," said John Dernbach, a professor at Widener University Law School. Dernbach, who writes extensively on climate change, co-authored a friend-of-the-court brief in the landmark case on behalf of 18 prominent climate scientists.