A Game of Climate Chicken: Can EPA Regulate Greenhouse Gases before Nthe U.S. Senate Ratifies the Kyoto Protocol?

By Bugnion, Veronique; Reiner, David M. | Environmental Law, Summer 2000 | Go to article overview

A Game of Climate Chicken: Can EPA Regulate Greenhouse Gases before Nthe U.S. Senate Ratifies the Kyoto Protocol?


Bugnion, Veronique, Reiner, David M., Environmental Law


I. INTRODUCTION

In the face of strong opposition to ratification of the Kyoto Protocol,(1) the United States Environmental Protection Agency (EPA) has indicated a willingness to use existing provisions of the Clean Air Act (CAA)(2) to promulgate and enforce regulations that would enact standards addressed by the Kyoto agreements. EPA has suggested that the section 302(g) definition of "air pollutant" includes greenhouse gas emissions, but it has not indicated which provisions of the CAA it would use to regulate emissions of these gases. Seemingly, EPA could use sections 108, 109, 112, 115, 202, and Title VI in order to regulate those emissions. However, any intimation by EPA that it might extend its regulatory authority to include greenhouse gas emissions raises opposition. Conservative politicians and their allies who oppose ratification of the Kyoto Protocol cite treaty law to assert their position that EPA cannot so extend its authority.(3) These opponents contend that, in the absence of language in the Protocol authorizing provisional implementation of its terms, EPA's proposal to regulate greenhouse gases is illegal.

This Article addresses the issue of whether EPA has the authority under the CAA to regulate pollutants that are widely, but not universally, believed to lead to harmful climate change. In assessing this issue, the article examines several key questions:

* Can the Administration implement the Kyoto Protocol without Senate ratification?

* Do any specific provisions of the CAA grant EPA the authority to regulate greenhouse gases at any level?

* What instruments are available to carry out such regulations?

* Apart from promulgating regulations, what actions can EPA take in the absence of further legislation from Congress?

Ultimately, the resolution of these issues depends on the central questions of law arising from the CAA's regulatory provisions, but those difficult legal questions will be resolved within, or alongside, an equally difficult set of political issues. Part H describes the political context within which this controversy arises. Part HI reviews the legal basis for any attempt to carry out commitments made in Kyoto prior to Senate ratification of the Protocol. Part IV reviews the various sections of the CAA that EPA might invoke in order to regulate greenhouse gases. Part V discusses EPA's authority to devise a market-based approach to regulating greenhouse gases. Part VI examines the reasonableness of EPA's market-based strategy in light of Congress's continuing authorization, which allows or requires EPA to carry out research programs and cooperative, voluntary efforts with industry in order to reduce pollution. Part VII highlights the fact that the debate over regulating carbon dioxide ([CO.sub.2]) and other greenhouse gases is not only a legal question but also a political one.

Any successful voluntary or regulatory program to reduce greenhouse gases will move the United States toward meeting the obligations enumerated in the Kyoto Protocol--not only in advance of Senate ratification, but against opposition that makes ratification, at best, doubtful. Although the CAA appears to offer some justification for EPA's contemplated actions,(4) it is necessary to recognize the fundamental differences between domestic environmental regulation and provisions that result from an international agreement--especially one that arose out of heated negotiations resulting in a difficult compromise among the original positions of the United States, the European Union, and Japan. Because of these differences, efforts to prevent EPA from carrying out the terms of the Kyoto Protocol must not interfere with the evolution of programs to reduce greenhouse gas emissions in the United States that have received widespread, bipartisan support.

II. SETTING THE POLITICAL STAGE

Opponents of curbs on U.S. greenhouse gas emissions have expressed alarm that the Clinton Administration is attempting to devise domestic regulations without seeking new legislation or to meet its international commitments without waiting for ratification of the recent Kyoto Protocol by the Senate. …

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