Carbon Dioxide: Our Newest Pollutant

By Epstein, Richard A. | Suffolk University Law Review, Fall 2010 | Go to article overview

Carbon Dioxide: Our Newest Pollutant


Epstein, Richard A., Suffolk University Law Review


I. WHY CARBON DIOXIDE?

It was my great pleasure to come to Suffolk University Law School to join the ranks of the many distinguished individuals who have delivered the Donahue Lecture. The topic of this lecture is the simple chemical, carbon dioxide, which is, now officially, our newest pollutant. The first question to ask is why I chose this particular title for carbon dioxide, a substance that predates the industrial revolution and is, in limited quantities at least, necessary for the survival of life as we know it on this planet. The answer relates to complexities that lie beyond my control under the peculiar statutory framework for dealing with pollutants under the Clean Air Act (CAA), which is administered by the Environmental Protection Agency (EPA). Pollutants must be registered under the CAA, and there has been a huge dispute--which I shall explain later on--about whether or not carbon dioxide should be registered as such under the Act. (2) After much internal debate, the Bush Administration said no. The states, led by Massachusetts, thought that the answer ought to have been yes. They forced the issue to the Supreme Court, which held in Massachusetts v. EPA (3) that, although the EPA was not necessarily bound to make that "endangerment" determination, it was nonetheless authorized to do so because carbon dioxide fell within the CAA's definition of an "air pollutant." (4) Under the CAA, an "air pollutant" is "any physical [or] chemical ... substance or matter which is emitted into or otherwise enters the ambient air." (5)

In a world of small coincidences, one of my former students, Liza Heinzerling, has played an active role in this debate. She was a lead author of the plaintiff's brief in Massachusetts v. EPA, and is now a key member of the Obama Administration's climate change team at the EPA. (6) Lo and behold, the position of the Bush Administration has been reversed as Lisa Jackson, the head of the EPA, has made an endangerment finding on carbon dioxide, as well as five other greenhouse gases (GHGs)--methane (C[H.sub.4]), nitrous oxide ([N.sub.2]O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (H[F.sub.6]). This finding has paved the way for their regulation under the CAA, which imposes extensive regulatory schemes on emissions from both stationary and moving sources. (7) The people who once litigated from the outside, through law schools and environmental organizations, have now become insiders, who in their new roles, have chosen to make the findings the Supreme Court allowed them to make in Massachusetts v. EPA.

The consequences of making an endangerment finding for a new pollutant are not trivial. That designation triggers a complicated set of obligations for both federal and state governments under the CAA. None of these new initiatives will be implemented without a struggle. Industry opposition to carbon dioxide regulation is fierce, and its lawyers have geared up for a fight to slow down this process under our creaky administrative procedures. In all likelihood, they will stall implementation by highlighting the multiple mismatches between the institutional arrangements set out under the CAA and any intelligent approach for dealing with GHGs--especially carbon dioxide. Make no mistake about it, carbon dioxide occupies a separate niche from the other five recently designated GHGs--all of which have long been recognized as pollutants under traditional statutory definition. For standard pollutants, it makes sense to seek to drive them as close to zero as is feasible. With carbon dioxide, this strategy is profoundly destructive to all living things.

Given this starting point, it follows that when carbon dioxide becomes a pollutant necessarily depends upon the quantities of the gas found in the atmosphere. It is equally clear, however, that we cannot take a nonchalant "the more the merrier" position with respect to carbon dioxide, because excessive amounts of it could trigger a process with potentially--but not necessarily--negative consequences. …

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