Energy & Commerce Hearing: Does the Clean Air Act Authorize EPA to Regulate Greenhouse Gases?

by Marlo Lewis on February 9, 2011

in Blog

Post image for Energy & Commerce Hearing: Does the Clean Air Act Authorize EPA to Regulate Greenhouse Gases?

That’s the question Rep. Henry Waxman just asked EPA Administrator Lisa Jackson. She replied: “The Supreme Court said greenhouse gases fit into the Clean Air Act’s broad definition of ‘air pollutants.'” Or words to that effect.

Civics 101:

  • Congress, not the Supreme Court, wrote the Clean Air Act (CAA).
  • The Supreme Court is not infallible. If it were, Supreme Court decisions would always be unanimous. Massachusetts v. EPA, the case to which Administrator Jackson alludes, was a 5-4 decision.
  • Congress and the Supreme Court are co-equal branches under the Constitution. Every Member of Congress takes an oath to “uphold the Constitution.” Therefore, every Member has a constitutional duty to exercise his own judgment as to what the Constitution means, what statutes mean, and whether agency actions under enacted statutes comport with or flout congressional intent.
  • If Members think the Court messed up, or if they merely think that the Court’s decision leads to bad public policy, they have a constitutional duty to rectify the Court’s error by passing laws like the Inhofe-Upton-Whitfield Energy Tax Prevention Act.

As it happens, a strong case can be made that the Court erred when it decided, in Massachusetts v. EPA, that greenhouse gases are “air pollutants” within the meaning of the statute.

The Court majority argued that, under CAA Section 302(g), CO2 and other greenhouse gases are “air pollutants” because they are “emitted into” or “otherwise enter” the air. The CAA exists, of course, to control and prevent “air pollution.” Therefore, the Court concluded, EPA has authority to regulate such substances if the agency determines that greenhouse gases endanger public health or welfare.

But 302(g) does not define “air pollutant” as anything “emitted.” It says that “air pollution agents” – substances that damage air quality – are “air pollutants” when emitted. The Court decoupled the term “air pollutant” from its plain English meaning – as if any “emitted” substance is an “air pollutant” whether or not it actually damages air quality. Carbon dioxide – like water vapor, the atmosphere’s main greenhouse gas – is a necessary constituent of clean air.

As Justice Antonin Scalia quipped in dissent, as defined by the Court, “everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Indeed, even absolutely clean, pollution-free air qualifies as an “air pollutant” the moment it moves or circulates, which is plainly absurd.

Section 302(g) is only two sentences long. The Court not only ignored a key term (“air pollution agent”) of the first sentence, it also ignored the entire second sentence, which holds that a “precursor” of a previously designated air pollutant is also an “air pollutant.” Congress would not have needed to say that if, as the Court opined, anything emitted per se is an “air pollutant,” because precursors form air pollutants only by being emitted.

Courts are not supposed to assume that Congress pads statutes with surplus verbiage. For a court to ignore a key term and an entire sentence of a two-sentence definition, in a case where the provision’s meaning is critical to the outcome, is not kosher. The entire greenhouse of cards EPA is now putting in place, with all its enormous economic and political ramifications, rests on the Court’s tortured reading of the CAA definition of “air pollutant.”

Interglacial John February 9, 2011 at 8:59 am

How does one pollute air with air?

Jack Bacchus February 9, 2011 at 11:10 am

Vote, think and respire like a Democrat of course, and speaking of courses; what's for dessert?

A just one, one hopes, and with lots of tumbrils lurking.

JW February 10, 2011 at 8:35 am

"..EPA has authority to regulate such substances if the agency determines that greenhouse gases endanger public health or welfare"

Isn't the key part about the EPA determining that greenhouse gases endanger public health or welfare? If the EPA had not determined that CO2 (plant food) was "bad", then the EPA could not be trying to regulate CO2.

Since the EPA has not determined that Frisbees are dangerous, then the EPA can not regulate Frisbees?

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