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IS CO2 A POLLUTANT AND DOES EPA HAVE

THE POWER TO REGULATE IT?

WEDNESDAY, OCTOBER 6, 1999

HOUSE OF REPRESENTATIVES, SUBBCOMMITTEE ON NA

TIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND
REGULATORY AFFAIRS, COMMITTEE ON GOVERNMENT
REFORM, JOINT WITH THE SUBCOMMITTEE ON ENERGY
AND ENVIRONMENT, COMMITTEE ON SCIENCE,

Washington, DC. The subcommittees met, pursuant to notice, at 2:39 p.m., in room 2247, Rayburn House Office Building, Hon. David M. McIntosh (chairman of the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs) presiding.

Present from the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs: Representatives McIntosh, Barr, and Kucinich.

Present from the Subcommittee on Energy and Environment: Representatives Calvert, Costello, and Ehlers.

Staff present from the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs: Marlo Lewis, Jr., staff director; Barbara F. Kahlow and Joel Bucher, professional staff members; Jason Hopfer, counsel; Gabriel Neil Rubin, clerk; Elizabeth Mundinger, minority counsel; and Earley Green, minority staff assistant.

Staff present from the Subcommittee on Energy and Environment: Harlan Watson, staff director; Rob Hood and Jean Fruci, professional staff members; Jeff Donald, staff assistant; and Marty Ralston, minority staff assistant.

Mr. MCINTOSH. The subcommittees shall come to order.

First, let me say thank you to my colleague from California for co-chairing today's hearing. This should be a thought-provoking and indepth hearing, since we will be examining questions that go to the heart of the debate about the Kyoto Protocol and the administration's climate change policies. These questions are: Is carbon dioxide a pollutant, and does EPA have the power to regulate it?

The central premise of both the Kyoto Protocol and the administration's policies is the theory of catastrophic global warming. According to this theory, the buildup of greenhouse gases—principally CO2 from fossil fuel combustion—will enhance the greenhouse effect, warm the Earth's atmosphere, and, thus, potentially, or even probably, increase the frequency and severity of extreme weather events, accelerate sea level rise, and spread tropical diseases.

More simply put, Kyoto proponents contend that CO2-a clear, odorless gas and the fundamental nutrient of the planetary food

(1)

chain-is, in fact, a pollutant. Administration officials, for example, often say their policies are needed to combat “greenhouse pollution."

The hypothesis that CO2 emissions constitute greenhouse pollution draws it strongest support from mathematical simulations of the global climate system, known as the general circulation models. Now, although impressive in their complexity, the models repeatedly fail to replicate current and past climate; and as computing power and modeling techniques have improved, the amount of projected global warming has declined. The empirical side of the issue is much clearer. Hundreds of laboratory and field experiments show that nearly all trees, crops, and other plants raised in CO2enriched environments grow faster, stronger, and with greater resistance to temperature and pollution stress.

So, to borrow a well-known phrase from the UN's Intergovernmental Panel on Climate Change, today's hearing will consider where the "balance of evidence" lies. Does the balance of scientific evidence suggest that CO2 emissions are endangering public health, welfare, and the environment?

The subcommittee will also examine whether EPA has the power under the Clean Air Act to regulate CO2. EPA claims that it does have such authority, most notably in former EPA General Counsel Jonathan Cannon's April 10, 1998 memorandum, entitled, “EPA's Authority to Regulate Pollutants from Electric Power Generation Sources

The Cannon memorandum was, and remains, controversial. In his appearance before our subcommittee, he reasserted that power to regulate CO2. Regulating CO2 to curb greenhouse pollution is the sum and substance of the Kyoto Protocol. So, the Cannon memorandum implies that EPA already has the power to implement Kyoto-style emission reduction targets and timetables, as if Congress, when it enacted and amended the Clean Air Act, tacitly ratified the Kyoto Protocol in advance.

Several questions spring to mind, which I trust we will explore today. First, does the Clean Air Act expressly confer on EPA the power to regulate CO2? On an issue of longstanding controversy like global warming, is it even conceivable that Congress would have delegated to EPA the power to launch a vast new regulatory program, a program potentially costing hundreds of billions of dollars, without ever saying so in the text of the statute? The Clean Air Act mentions CO2 and global warming only in the context of non-regulatory activities such as research and technology development. How then can EPA claim that the act clearly and unambiguously provides the authority to regulate CO2?

Second, does CO2 fit into any of the regulatory programs already established under the Clean Air Act? The Cannon memorandum suggests, for example, that EPA may regulate CO2 emissions under the National Ambient Air Quality Standards (NAAQS) program. But that program was designed to address local air quality problems, not a global phenomenon like the greenhouse effect. If EPA were to set a NAAQS for CO2, for example, that is below the current atmospheric level, the entire United States would be out of attainment. Every community within the United States would be out of attainment if that NAAQS standard were adopted. Even if every factory and power plant were to shut down, this would continue to be the case because it is a global phenomenon.

Conversely, if EPA were to set a NAAQS standard that is above the current level, the entire country would be in attainment, even if CO2 emissions suddenly doubled in many of our communities. So NAAQS is not a tool well-crafted to attack the problem of global warming. The attempt to regulate CO2 through the NAAQS program would appear to be an absurd and futile exercise. This suggests that Congress, when it enacted the program, never intended EPA to regulate CO2.

The third question that I have, does the legislative history of the Clean Air Act Amendments of 1990 expressly support or, in fact, contradict EPA's claim of authority to regulate CO2? Some may argue that Congress' deliberate rejection of greenhouse gas regulatory provisions in the 1990 amendments is irrelevant, because declining to mandate such regulation is not the same as prohibiting it. But this is tantamount to saying that EPA has whatever authority Congress does not expressly withhold. That is simply turning the entire principle of administrative law on its head. Under our system of government, agencies only have the powers that Congress specifically delegates to them.

The Clean Air Act is a carefully structured statute with specific titles that create specific regulatory programs to accomplish specific objectives. It is not a regulatory blank check. EPA contends that CO2 falls within the Clean Air Act's formal or technical definition of pollutant“ as a substance that is “emitted into or otherwise enters the ambient air." But this hardly suffices to settle the question of whether Congress designed and intended any of the Clean Air Act's regulatory programs to encompass CO2.

Before I turn over the proceedings to Chairman Calvert, I would like to welcome our witnesses. Representing the Clinton administration on the question of EPA's legal authority is EPA General Counsel Gary Guzy. Welcome, Mr. Guzy. I appreciate your willingness to step up to the plate and address these tough questions. Mr. Peter Glaser, of the law firm of Shook, Hardy, and Bacon; Professor James Huffman, who is Dean of the Lewis and Clark Law School; and Professor Jeffrey Miller of Pace University School of Law will also speak to the question of EPA's legal authority. Thank you, gentlemen, for participating in this forum.

I would also like to welcome the members of the scientific panel: Dr. Patrick Michaels, professor of Environmental Sciences at the University of Virginia and senior fellow in Environmental Studies at Cato Institute; Dr. Keith Idso, vice president of the Center for the Study of Carbon Dioxide and Global Change; and Dr. Chris Field, who is a staff scientist at the Carnegie Institution.

With that, let me turn over the opening statement to Mr. Calvert. Welcome. I really appreciate your effort to make this a joint hearing.

(The prepared statement of Hon. David M. McIntosh follows:]

Statement of Chairman David M. McIntosh Subcommittee on National Economic Growth, Natural Resources and Regulatory

Affairs

on

"Is CO2 a Pollutant and Does EPA Have the Power to Regulate It?

October 6, 1999

I would like to thank the gentleman from California for co-chairing today's hearing. This should be a thought-provoking hearing, since we will be examining questions that go to the heart of the debate on the Kyoto Protocol and the Administration's climate change policies. Those questions are: Is carbon dioxide (CO2) a pollutant and does the Environmental Protection Agency (EPA) have the power to regulate it?

The central premise of both the Kyoto Protocol and the Administration's climate policies is the thcory of catastrophic global warming. According to this theory, the atmospheric buildup of greenhouse gases - principally CO2 from the combustion of fossil fuels – will enhance the natural greenhouse effect, warm the earth's surface and atmosphere, and, thus, potentially (or even probably) increase the frequency and severity of extreme weather events, accelerate sea level rise, and spread tropical diseases.

More simply put, Kyoto proponents contend that CO2- a clcar, odorless gas and the fundamental nutrient of the planetary food chain – is a pollutant. Administration officials, for example, often say that their policies are needed to combat “greenhouse pollution."

The hypothesis that CO2 emissions constitute greenhouse pollution draws its strongest support from mathematical simulations of the global climate system known as General Circulation Models (GCMs). Although impressive in their complexity, the models repeatedly fail to replicate current and past climate; and as computing power and modeling techniques have improved, the amount of projected global warming has declined. The empirical side of the issue is much clearer. Hundreds of laboratory and field experiments show that nearly all trees, crops, and other plants raised in CO2enriched environments grow faster, stronger, and with greater resistance to temperature and pollution stress.

So, to borrow a well-known phrase from the UN's Intergovernmental Panel on Climate Change, today's hearing will consider where the “balance of evidence" lies. Does the balance of scientific evidence suggest that CO2 emissions are endangering public health, welfare, and the environment? Or, does it suggest that such emissions are “greening” the planet, enhancing global food security and biodiversity?

The Subcommittees will also examine whether EPA has the power, under the Clean Air Act, to regulate CO2. EPA claims that it does have such authority, most notably in former EPA General Counsel Jonathan Cannon's April 10, 1998

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