Greens’ Pending Suit over Aviation GHGs Demonstrates Dangers of EPA’s Climate Change Regulatory Regime

The Clean Air Act employs a “belt and suspenders” approach to mitigating air pollution, such that regulation begets further regulation.

In late 2009, for example, EPA determined that greenhouse gas emissions from automobiles “endangered” public health and welfare. As a consequence, the agency was compelled to regulate cars and trucks under the Clean Air Act. However, the agency’s responsibilities didn’t end there! Clean Air Act §165 requires that all new, “major” stationary sources of conventional pollution to achieve “best available control technology” for all pollutants subject to regulation under the statute. As such, EPA’s greenhouse gas rules for automobiles triggered greenhouse gas rules for stationary sources.

This redundant approach to regulating perhaps makes sense for conventional pollution, of the sort that Congress had in mind when it wrote the Clean Air Act in 1970, but it’s an irresponsible course for greenhouse gases, which are ubiquitous and for which there are no market-ready control technologies.

Simply put, the agency risks biting off more than it can chew. By starting down a path of climate regulation, the agency is accruing unmet responsibilities to control GHGs. This wouldn’t be a problem if the agency had the discretion to manage its own resources, but, alas, that’s not the case, because the Clean Air Act empowers environmental special interests to sue to force the agency to meet its non-discretionary duties.

Yesterday, another domino fell, when a coalition of green groups notified EPA of their intention to sue in order to force the agency to promulgate greenhouse gas standards for the aviation sector. Clean Air Act §231(a)(2)(A) requires EPA to determine whether emissions of a given pollutant may reasonably be anticipated to endanger public health or welfare. If such a determination is made in the affirmative, the agency must adopt standards to limit those emissions.

In fact, the Obama administration doesn’t want to subject the sector to regulations; to this end, it is proceeding with international negotiations. But I don’t see how they can avoid it. If greenhouse gases from cars “endanger” public health, then how could it be possible that emissions from airplanes don’t do the same?

All of these regulations—for cars, for plans, for new stationary sources—are tiddlywinks relative to the ever-present threat that environmental groups will sue to compel a Clean Air Act National Ambient Air Quality Standard for greenhouse gases. Under §108(a), EPA must set a greenhouse gases NAAQS if

1. The agency determines that GHGs may reasonably be anticipated to endanger public health or welfare;
2. The pollutant in question is emitted by a variety of stationary and mobile sources.

Again, I don’t see how EPA could dodge this responsibility.* EPA already has conceded that GHGs “endanger” public health and welfare, and GHGs are emitted by a variety of mobile and stationary sources.  Logically, a GHG NAAQS would have to be set at a level below current ambient concentrations, which would render the entire U.S. in NAAQS non-attainment. This is akin to a de-development mandate.

Thanks to EPA’s imprudent decision to proceed with regulations for greenhouse gases pursuant to the Clean Air Act, environmental groups now possess a weapon of mass economic destruction that they’re free to deploy whenever they so desire.

*One esteemed jurist, with whom I almost always agree, asserts that the Supreme Court’s recent decision in UARG v. EPA suggests that a GHG NAAQS is off the table. I respectfully disagree.