President Obama is serious about fighting climate change in his second term, but his only real weapon for doing so is a 23-year-old law that wasn’t written with climate change in mind. This is not how he wanted to do it. It’s actually his last resort.
In a warren of back rooms at the Environmental Protection Agency’s hulking marble headquarters a few blocks from the White House, a squadron of government lawyers is laboring over the regulations of a lifetime. Obama’s climate legacy—his ability to claim he worked to save the planet from the worst ravages of global warming—rests on the bureaucrats’ ability to creatively interpret a law to solve a problem it was never meant to tackle.
In his first term, Obama tried but failed to get Congress to enact a law that specifically targets climate change. But the cap-and-trade bill crashed in the Senate in 2010, and there’s almost no likelihood that the gridlocked Congress will take it up again in the near future. That’s why, in his State of the Union address, Obama told members of Congress that if they won’t act on climate change, “I will”—with or without them.
And he has the legal authority to do it. Under the terms of a sweeping 1990 law, the Clean Air Act Amendments, EPA must regulate harmful pollutants that endanger human health. And in 2009, prodded by a Supreme Court ruling, the agency designated carbon dioxide a “harmful pollutant,” adding it to the ranks of other toxins such as mercury, lead, soot, and sulfur dioxide. So the law now says Obama can—nay, must—regulate carbon. But here’s the tricky part: The law doesn’t quite say how to do it.
Even its original authors concede as much. “We were not focused on climate,” said Phil Barnett, chief of staff to Rep. Henry Waxman, D-Calif., one of the chief authors of the 1990 statute. “We were focused on these other pollutants,” the environmental problems of the ’80s, such as acid rain, urban smog, and the hole in the ozone layer. Carbon wasn’t a big concern at the time, and so no title of the law addresses global warming or how to regulate the gases that cause it.
“The Clean Air Act is very powerful, but it doesn’t regulate climate change,” says Scott Schang, the director of climate policy at the nonprofit Environmental Law Institute, and the editor of the forthcoming book Old Law, New Tricks: Using the Clean Air Act to Address Climate Change.
Applying that old law to the new problem is “a round peg in a square hole … it’s not a great fit,” Schang says. “No one thinks the Clean Air Act is the optimal tool, but it’s the tool we have.”
For example, the law says the government must regulate any entity that spews more than 250 tons of harmful pollutants annually. That covers major polluters such as coal-powered plants and factories which emit soot and mercury. But if you try applying that requirement to carbon emissions, which are ubiquitous throughout the economy—and which, unlike soot and mercury, are harmless in small amounts—you’d suddenly be forced to regulate almost every small business in America, as well as schools, restaurants, and apartment buildings. That’s a regulatory nightmare no one wants. So EPA has tried to tailor the law for carbon. It has crafted a rule stipulating that in the case of carbon, the government needs to regulate only sources that emit more than 100,000 tons of the greenhouse gas a year—that is, only big, industrial polluters. But if a legal challenge from industry holds up, EPA could end up back in an impossible situation.
Here’s another way the aged act is a bad fit for the new problem: It requires polluters to invest in the “best available technology” to reduce their emissions. So the owner of a coal plant hit with Clean Air Act regulations on its mercury pollution could buy smokestack scrubbers to reduce those emissions. But such technology simply doesn’t exist for carbon, at least not at an affordable scale. “Clean coal,” or carbon-capture technology, costs billions of dollars and is still years away from commercial availability.
For coal-plant owners, the only way to comply with the law may be to shut down. That’s why Rep. John Dingell, D-Mich., another of the act’s original authors, has said that using it to regulate climate change will create a “glorious mess.”
Already, signs show how tough it will be. In April 2012, EPA proposed a Clean Air Act climate regulation that would limit carbon emissions from new coal-fired power plants. The agency said it would issue a final regulation on new plants one year later. But last month, the agency delayed the final rule indefinitely, out of concern that, as written, it was still too legally vulnerable.
In addition to the final rule on new coal plants, EPA is also expected in the coming years to issue Clean Air Act regulations limiting carbon from existing coal plants; these rules could be even more legally vulnerable unless written with the exact right blend of caution and creativity. An overly ambitious interpretation of what the Clean Air Act allows will invite a hailstorm of legal attacks from industry that could succeed in overturning the rules. But a too-cautious interpretation could make the rules legally defensible—but environmentally toothless.
The stakes are huge. Obama’s climate regulations will arguably be among the most scrutinized, and litigated, environmental rules in a generation. That they’ll end up in court—very likely, the Supreme Court—is also safe to assume, say legal eagles on both sides. And the case, when it comes, could determine whether the United States takes any meaningful action to curb the warming of the planet.
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