EPA Endangerment Showdown: Should Congress Heed Russell Train’s Advice?

By Marlo Lewis -- June 1, 2010

On June 10, the U.S. Senate will debate and vote on a resolution of disapproval (S.J.Res.26), sponsored by Republican Senator Lisa Murkowski of Alaska, to stop the U.S. Environmental Protection Agency from ‘enacting’ controversial global warming policies through the regulatory back door.

S.J.Res.26 would overturn the EPA’s endangerment finding, a December 2009 rulemaking in which the agency concluded that greenhouse gas emissions endanger public health and welfare. The endangerment finding is both trigger and precedent for sweeping policy changes Congress never approved. America could end up with a bundle of greenhouse gas regulations more costly and intrusive than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it.

At a minimum, as former Virginia Gov. George Allen and I explain elsewhere, unless stopped, the EPA will be in a position to determine the stringency of fuel economy standards for the auto industry, set climate policy for the nation, and even amend the Clean Air Act — powers never delegated to the agency by Congress.

S.J.Res.26 puts a simple question squarely before the Senate: Who shall make climate policy — lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?

Precisely because S.J.Res.26 would restore constitutional discipline to climate policymaking, regulatory zealots are mounting smear campaigns against it. Climate Progress calls it “polluter crafted” (impossible, because the language and form of the resolution are fixed by the Congressional Review Act). MoveOn.Org claims the resolution will condemn many Americans to “smoke the equivalent of a pack a day just from breathing the air” (utter nonsense – just one cigarette delivers 12-27 times the daily dose of fine particulate matter that non-smokers get in cities with the most polluted air). Environmental Defense Action Fund says the resolution will give corporate polluters a “bailout” (also impossible, because S.J.Res.26 is not a tax or spending bill).

Train Weighs In, Ignores Obvious, Knocks Down Straw Man 

A more sophisticated attack comes from Russell Train, who served as EPA Administrator under the Nixon and Ford Administrations (1973-1977). In a May 24 letter to Senate leaders, Train warns that S.J.Res.26 would “rollback Clean Air Act protections.”

Not so! Yes, the resolution would “prevent the EPA from regulating greenhouse gas emissions.” But from its inception in 1970 through the present day, EPA has not regulated greenhouse gas emissions, and its recently finalized motor vehicle emission standards do not take effect until 2011. Train confuses “rollback” with containment. The only thing S.J.Res.26 would roll back is EPA’s regulatory overreach.

Train also claims that, “If passed, this resolution would fundamentally undermine the Clean Air Act, overturning science in favor of political considerations.” Not so. Although some may oppose EPA’s endangerment finding on scientific grounds, S.J.Res.26 neither takes nor implies a position on climate science. The resolution would overturn the endangerment finding’s “legal force and effect,” not its reasoning or conclusions. The resolution is a referendum not on climate science but on the constitutional propriety of EPA making climate policy without new and specific statutory guidance from Congress.

Train, however, would have us believe that Congress already signed off on EPA’s greenhouse gas regulations. When? Why, back in 1970 – decades before global warming became a political issue – when Congress enacted the Clean Air Act. He explains:

Precisely because existing knowledge was so limited at the time, Congress broadly defined the term “air pollutant” and relied on the experts at EPA to evaluate individual pollutants. Congress also clearly established that the sole criterion triggering EPA action was to be a scientific one: whether a pollutant “may reasonably be anticipated to endanger” human health or welfare.

To illustrate the point, Train recounts how he, as Administrator, took action in 1973 to control lead pollution from gasoline combustion, even though the Clean Air Act did not list lead as a pollutant and Congress did not ban leaded gasoline until 1990. EPA used science to determine the dangerousness of lead pollution and then issued regulations. EPA is following the same process today with regard to greenhouse gases. Hence, Train concludes, the Act is working “as Congress intended.”

But all this proves is that EPA has jumped through the requisite procedural hoops, which nobody disputes. That in no way demonstrates that Congress meant to regulate greenhouse gases through the Clean Air Act. Train ignores the obvious. Congress did not design the Clean Air Act to be a framework for climate policy, has never voted for the Act to be used as such a framework, and has never approved the regulatory cascade that EPA’s endangerment finding, if allowed to stand, will ineluctably trigger.

The imposition of costly Clean Air Act permitting requiements on small business (about which, more below) is only the best known part of the aforementioned cascade. In addition, EPA will likely have to establish national ambient air quality standards (NAAQS) for greenhouse gases set below current atmospheric levels. After all, EPA attributes endangerment to the “elevated concentration” of greenhouse gases, so the agency has already satisfied the substantive criteria for initiating a NAAQS rulemaking laid out in Section 108 of the Clean Air Act.

Unsurprisingly, environmental organizations are petitioning the agency to establish a NAAQS for carbon dioxide at 350 parts per million (roughly 40 ppm below current concentrations), and NAAQS for other greenhouse gases at pre-industrial levels. Train says not a word about this, yet when he was Administrator, he tried and failed to avoid establishing NAAQS for lead pollution. The Second Circuit Court of Appeals ruled that EPA had a mandatory duty to establish NAAQS for lead, because it had previously determined that lead endangers public health and welfare (NRDC v. Train, 545 F.2d 320, 1976).

Although NAAQS regulation of lead was both technologically and economically feasible, not even a global depression lasting several decades would suffice to lower atmospheric carbon dioxide concentrations below current levels. As Train surely knows, EPA may not take costs into account when determining NAAQS. The endangerment finding thus sets the stage for eco-litigation groups to transform the Clean Air Act into an economic suicide pact. Yet by Train’s logic, Congress signed off on that too, simply because EPA has made an endangerment finding.

Train knocks down a straw man. No one denies that the Clean Air Act authorizes EPA to regulate pollutants not specifically listed in the text. No regulatory law can work if the administering agency is forbidden to use evolving knowledge to fill gaps in statutorily created regulatory schemes. However, there is a world of practical and legal difference between EPA filling gaps due to the inevitable limitations of “existing knowledge” and EPA initiating new policies solely on its own authority. Train’s example actually illustrates this key distinction.

The Clean Air Act directs EPA to identify and regulate pollutants that damage air quality. Lead is an air quality contaminant, so it fits perfectly within the statutory framework. However, search the Clean Air Act from top to bottom, and you will not find any Title, section, or subsection on global climate change, nor will you find the terms “greenhouse gas” and “greenhouse effect.” Just because EPA has authority to regulate lead as an air quality contaminant, it does not follow that EPA has authority to regulate carbon dioxide as a greenhouse gas.

Bureaucratic Supremacy

Train takes an uncontroversial thesis – that Congress wanted EPA to apply statutory authorities in light of evolving knowledge – and parleys it into a doctrine of bureaucratic supremacy. As Train reads the Act, EPA has authority to regulate as it sees fit, and may do so in perpetuity regardless of the lack of any specific congressional mandate. In Train’s view, moreover, Congress must accept whatever EPA decides, otherwise Congress is “rolling back” and “undermining” the Act.

It’s not hard to understand why an EPA Administrator (past or present) might profess this doctrine. “It’s good to be the King,” as Mel Brooks famously observed. Congress, however, cannot embrace a doctrine of bureaucratic supremacy without running afoul of the U.S. Constitution.

By putting lead, a gasoline additive, in the same regulatory boat with carbon dioxide, the inescapable byproduct of fossil energy use, Train obscures the singular importance of the power EPA is poised to exercise. The power to regulate carbon dioxide is nothing less than the power to determine climate change policy and restructure America’s energy supply system. It is also potentially the power to destroy trillions of dollars in cumulative GDP. Policy decisions of such economic and political magnitude are beyond the pay grade of any administrative agency to make.

Train argues as if EPA were an apolitical font of scientific objectivity. Yet, how can that be when EPA is both the agency that makes endangerment findings and the agency that writes and enforces regulations based on those findings? Does EPA have no incentives to expand the scale and scope of its power? A conflict of interest is built into EPA’s modus operandi.

Up to now, this ethically flawed situation has been tolerable because Congress clearly specified the types of substances over which EPA has regulatory authority – those that degrade air quality, those that pose acute risks of toxicity, and those that deplete the ozone layer. But when Congress enacted and amended the Clean Air Act, it never specified greenhouse gases as a class of substances to be regulated. As a feat of bureaucratic self-dealing, the endangerment finding is off the charts.

Mass. v. EPA: Is the Court Infallible?

Train also cites the Supreme Court’s 2007 ruling, Massachusetts v. EPA (549 U.S. 497, 2007), as proof that Congress intended to regulate greenhouse gases through the Clean Air Act. The Court, he notes, held that greenhouse gases “fit well within” the Clean Air Act’s definition of an “air pollutant.”

Members of Congress, however, have a duty to exercise their own judgment to determine what the law means. They cannot automatically defer to the Court’s interpretation without Congress ceasing to be an independent and co-equal branch. A doctrine of judicial infallibility is as alien to our Constitution as is a doctrine of bureaucratic supremacy.

To reach the conclusion that greenhouse gases are “air pollutants” for regulatory purposes, the Court’s 5-4 majority had to bowdlerize Section 302(g) of the Act. Specifically, the majority had to ignore a key term of the provision’s first sentence and ignore the entire second sentence.

The first sentence of 302(g) defines an air pollutant as an “air pollution agent” emitted into, or otherwise entering, the ambient air. A common sense reading suggests that “air pollution agent” is a qualifier – a criterion for distinguishing pollutants from non-pollutants. To be an air pollutant, a substance must not only be “emitted” or “enter,” it must also be an “air pollution agent.” In other words, it must be a substance that causes or contributes to air pollution — something that fouls or dirties the air.

It is far from evident that carbon dioxide is an “air pollution agent.” A clear, odorless gas that is  non-toxic to humans at many times ambient concentrations, carbon dioxide is an essential plant nutrient, and elevated concentrations boost most plants’ biomass productivity, water use efficiency, and resistance to environmental stresses such as ozone pollution. Carbon dioxide is certainly unlike any other substance EPA has previously regulated as an “air pollutant.”

Bush EPA Administrator Stephen Johnson was well within his Chevron deference rights to conclude that carbon dioxide is not an air pollution “agent,” hence not an “air pollutant” within the meaning of Section 302(g). The Court majority, however, cast aside Chevron deference, read the sentence to mean that anything emitted per se is an “air pollutant,” and concluded that greenhouse gases fit the bill.

The second sentence of 302(g) stipulates that “precursors” of previously designated air pollutants are also air pollutants. This sentence would be superfluous if anything emitted is automatically an air pollutant, because precursors can form air pollutants only after being emitted. Courts are not supposed to assume that lawmakers pad statutes with superfluous verbiage, yet the majority made no effort to establish that the second sentence of 302(g) is irrelevant to the definition of “air pollutant.”

The majority’s highly selective reading of Section 302(g) was in fact the lynchpin of their ruling, and it is sobering to reflect that the fate of the economy may hinge on such a dubious construction.  Treating “air pollution agent” as a superfluous term or as a synonym for “air pollutant” makes 302(g) hopelessly circular — as if the provision said, “The term ‘air pollutant’ means any ‘air pollutant’ emitted into or otherwise entering the ambient air.” This is not what Congress wrote, and is not likely what Congress meant, because circular definitions define nothing.

The majority’s selective reading also turns 302(g) into a formalism whereby a thing may be an “air pollutant” even if it does not degrade air quality. As Justice Scalia quipped in dissent, given the majority’s reading, “It follows that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Indeed, if anything emitted into or entering the ambient air is an “air pollutant,” then even absolutely clean, pollution-free air is an “air pollutant” the moment it moves or circulates.

From Misread Statutes Come Absurd Regulatory Results

Regrettably, the Court’s bowdlerization of 302(g) not only leads to absurd conclusions, it also set the stage for absurd regulatory results. Here Train ignores abundant new evidence, piling up in the aftermath of Mass. v. EPA, that Congress never meant to regulate greenhouse gases through the Clean Air Act.

Under the Act, each firm must obtain a Prevention of Significant Deterioration (PSD) pre-construction permit in order to build or modify a “major stationary source” and a Title V permit in order to operate such a facility. A stationary source is “major” under the PSD program if it has a potential to emit 250 tons per year of a “regulated air pollutant,” and “major” under Title V if it has a potential to emit 100 tons per year. These definitions make sense when applied to bona fide air pollutants, such as particulate matter and smog-forming chemicals, which are emitted in the threshold amounts only by large industrial facilities.

In contrast, an immense number and variety of previously unregulated entities — office buildings, big box stores, apartment complexes, small manufacturers, commercial restaurants, heated agricultural facilities, hospitals, churches, and schools — emit 100-250 tons per year of carbon dioxide. All become vulnerable to new regulation, penalties, and litigation under the PSD and Title V provisions once EPA’s greenhouse gas motor vehicle emission standards take effect and carbon dioxide becomes a “regulated air pollutant.”

Applying the Clean Air Act to carbon dioxide leads straight to a red ink nightmare, as EPA’s Tailoring Rule acknowledges. Specifically, the EPA and its state counterparts would have to process an estimated 41,000 PSD permits annually (instead of 280) and 6.1 million Title V operating permits annually (instead of 14,700). Such workloads vastly exceed agencies’ administrative resources. Huge, ever-growing backlogs would bog down environmental enforcement, block new construction, and thrust millions of firms into legal limbo. One reason these results are “absurd,” the Tailoring Rule explains, is that they conflict with and undermine congressional intent.

When a court decision leads to “absurd results,” there are only two possibilities. One is that the court brought to light a flaw previously hidden in the statute. The other is that the court misread the statute.

To maintain the correctness of the Court’s decision in Mass. v. EPA, one must suppose that when Congress enacted the Clean Air Act in 1970, it somehow inserted the statutory equivalent of malicious code into the text, the bug lay dormant for 40 years, and then suddenly the malware became active, causing programs that had worked reasonably well since their inception to go haywire, work at cross purposes with themselves and each other, undermine congressional intent, and jeopardize America’s economic future. And if the EPA Administrator, former or present, really believes that, then I have a bridge I’d like to sell him or her.

Conclusion: Uphold the Separation of Powers!

Train congratulates Administrator Jackson for taking a “measured approach” and demonstrating her “sensitivity to economic concerns” by exempting all but the largest carbon dioxide emitters from PSD and Title V permitting requirements for six years. But the Clean Air Act nowhere gives the Administrator the authority to suspend or revise the PSD and Title V applicability thresholds. The so-called Tailoring Rule is actually an amending rule.

To pound the square peg of climate policy into the round hole of the Clean Air Act, EPA has to play lawmaker and effectively rewrite statutory provisions. This breach of the separation of powers only compounds the constitutional crisis inherent in EPA’s hijacking of fuel economy regulation and climate policymaking.

Momentous decisions affecting potentially millions of firms, trillions of dollars in GDP, and U.S. energy security should be based on something more solid than a selective reading of the Clean Air Act’s definition of “air pollutant.” That is an absurd way to make public policy. It is not how the Framers intended for the Constitution to work.

The importance of the vote on S.J.Res.26 is difficult to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.