EPA plans to propose and finalize regulations establishing first-ever carbon dioxide (CO2) emission standards for jet aircraft. The agency recently submitted an Information Paper to the UN’s International Civil Aviation Organization (ICAO) setting out a regulatory timeline. Once again, the Obama administration reads the Clean Air Act (CAA) to require a climate policy never intended or approved by Congress, and undertakes to negotiate an international agreement that likely would not survive a Senate vote on ratification.
A product of creeping Kyotoism, the yet-to-be-proposed rule has been gestating since 2007. From EPA’s Information Paper:
The U.S./EPA is initiating the rulemaking process in response to a petition the U.S./EPA received in December 2007, which requested that U.S./EPA make an endangerment finding for aircraft GHGs [greenhouse gases] and regulate these emissions under §231 of the Clean Air Act (CAA). Petitioner filed a lawsuit in 2010 on this matter, and the D.C. District Court in 2012 ruled that the CAA required U.S./EPA to make a final determination on whether aircraft GHG emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. U.S./EPA is now moving forward to make a determination regarding aircraft GHG emissions.
CAA §231 requires EPA to establish emission standards for aircraft if the agency determines that “emission of any air pollutant from any aircraft . . . causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” That EPA will make a positive finding of endangerment is a foregone conclusion.
As the Information Paper notes, EPA already determined in December 2009 that greenhouse gas-related “air pollution” from new motor vehicles endangers public health and welfare. Through that action, EPA empowered itself to set de facto fuel economy standards* under CAA §202, poaching regulatory authority delegated by Congress to another agency (the National Highway Traffic Safety Administration) under a separate statute (the Energy Policy and Conservation Act). So EPA will undoubtedly determine that “air pollution” from aircraft GHG emissions warrants a further expansion of the agency’s regulatory power.
The main difference this time round is that EPA will be setting quasi-fuel economy standards for aircraft, even though no existing statute authorizes any agency to prescribe such standards.
The scientific case for endangerment is weaker today than it was five years ago (see, e.g., here, here, here, here, and here). However, courts are deferential to agency expertise and typically decline to adjudicate scientific controversies.
Courts may, however, be more open to scientific pushback if they question the coherence of EPA’s basic reasoning. What follows is a rumination on EPA’s attempt to define “carbon pollution” in its seminal December 2009 endangerment determination. EPA’s definition, in my view, is a conceptual muddle. [click to continue…]