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Clean Air Act Proving Effective in CO2 Regulation, Lawyers Tell Their Corporate Clients

Observers wonder if EPA's measured momentum rightly puts Congress in the back seat

Jun 30, 2010

WASHINGTON—U.S. senators have emitted their fair share of carbon dioxide explaining over and over why they need to assume the leading role in limiting pollution from greenhouse gases. But the longer senators dawdle, the more the Clean Air Act—which some legislators revel in deriding—seems to upstage their supposed superiority.

Some observers are even questioning Congress’s relevance as the Environmental Protection Agency gains momentum with its current measured approach to curbing heat-trapping gases.

For instance, at least one nationwide law firm that advises major clients on the environmental front praises the Clean Air Act as a proven and effective tool for regulating carbon dioxide and other greenhouse gases.

Ballard Spahr attorney Robert McKinstry Jr. elaborated on the details for his audience of corporations in a June memo he co-authored titled EPA Gives Shape to Economy-Wide Greenhouse Gas Regulation.

It contains a handy table of federal regulatory actions to control greenhouse gas emissions that are already rolling, which McKinstry calls “just the first wave” of measures that “will affect most sectors of the economy and many fields of legal practice.”

Taken together, the force of these measures puts Congress in the back seat and begs the question whether that might not be the best place for lawmakers after all.

Yes, Congress needs to weigh in somehow, McKinstry told SolveClimate from Ballard Spahr’s offices in Philadelphia. He pointed out, however, that the Clean Air Act contains not one but two clear and independent routes EPA officials can use to even enact a federal cap and trade system.

“A lot of large companies disagree with the Chamber of Commerce,” McKinstry said in an interview. “They would like to see the certainty that a cap and trade system provides.”

McKinstry's 17-page legal memo explains that EPA has repeatedly stated that it would favor an amendment to the Clean Air Act specifically addressing greenhouse gas emissions.

“Although legislation would remove certain uncertainties, speed the course of regulation and reduce the likelihood of successful challenges in court, it appears increasingly clear that comprehensive regulation of greenhouse gas emissions will occur regardless of whether Congress acts or not,” he wrote.

“EPA regulatory actions, actions by states and potential liabilities will all put a price on carbon emissions and create business risks and opportunities that should play a part in corporate planning.”

In an ideal world, Congress would be shouldering the responsibility of controlling greenhouse gases just to make for a smoother transition, McKinstry said. That’s because EPA’s decisions are subject to a seemingly endless cycle of appeal and litigation.

EPA Chugging Along

Under the Obama administration, the subtext at EPA is that Congress should be crafting climate change legislation but that the agency will move ahead in the meantime, McKinstry explained.

While progress was snail-like after the spring of 2007 when the U.S. Supreme Court ruled that EPA has the authority to regulate greenhouse gases, the agency picked up the pace after Lisa Jackson took over as administrator.

Since issuing the endangerment finding in December 2009—which officially found emissions of mobile sources to threaten human health and welfare—EPA has taken several steps forward with insider-baseball names such as the mobile source rule, the trigger rule, the tailoring rule and the reporting rule.

Briefly, these rules mean industrial sources of greenhouse gases will be regulated through a process that rolls out gradually over the coming years. For example, the tailoring rule will require about 550 large industrial manufacturers and landfills to obtain permits for emissions beginning in January 2011, with about 900 additional polluters coming under regulatory review each year thereafter.

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