Mr. MCINTOSH. Thank you, Mr. Calvert. Again, I do appreciate your joining us and co-chairing this hearing. And at certain points, because I have a markup over in Education, I will be calling on you to chair this for us. I appreciate that. Let me now turn to Mr. Costello. Would you like to make an opening statement? Mr. COSTELLO. Mr. Chairman, I have a brief opening statement. Like you, I will have to leave in just a minute, so I trust that your ranking member will be here shortly. Mr. Chairman, I thank you and my good friend from California, Chairman Calvert for calling the hearing today. I think by now we are all familiar enough with the Clean Air Act and its many provisions to at least suspect that it provides the EPA with the authority to regulate carbon dioxide. However, at this point, it is less important than the question of whether the information we have at this point in time indicates that carbon dioxide is actually causing harm to humans or to our environment. I do not believe that this test has been met. The Congress and the administration have both indicated, and I adamantly agree, that the Kyoto Protocol should not be implemented prior to its ratification by the Senate. I believe we are all clear on that point. Therefore, I believe that we should be engaged in more positive pursuits than debating authorities under the Clean Air Act. It is in our national interest to look for ways to utilize energy resources more efficiently and to develop alternative energy resources that we will need in the future. We also should continue to develop a better understanding of all variables that affect local climate on both short and long-term scales. Increased greenhouse gases may be changing our climate. However, regardless of whether they are changing our climate or not, we need to understand climate phenomenon and their relationship to regional weather patterns and the effect on the frequency and intensity of storms or droughts. This information is vital for disaster preparedness and understanding impacts on weather-dependant sectors, such as agriculture. I hope we can move beyond the climate change debate to working on policies that benefit our constituents. I thank all of the witnesses for being here today. I look forward to hearing their testimony. Mr. Chairman, with that, I yield back the balance of my time. Mr. MCINTOSH. Thank you, Mr. Costello, and thank you for joining us. Undoubtedly, Mr. Kucinich is also over in the Education Committee markup, since we both serve on that committee as well. Let me call our first panel of witnesses. I would ask each of you to summarize any prepared statement you have in approximately 5 minutes or so, and then we will be able to put your entire remarks into the record. One of the policies that Chairman Burton has asked all of the subcommittees of the Committee on Government Reform to do is to swear in our witnesses. So, if all of you would please rise. Do you solemnly swear that the testimony you will give today is the truth, the whole truth, and nothing but the truth? [Witnesses sworn.] Mr. MCINTOSH. Thank you. Let the record show that each of the members of the first panel answered in the affirmative. Mr. Guzy, welcome. Thank you for coming today. Please share with us your testimony. STATEMENTS OF GARY S. GUZY, GENERAL COUNSEL, U.S. ENVIRONMENTAL PROTECTION AGENCY; JAMES HUFFMAN, DEAN, LEWIS AND CLARK LAW SCHOOL; PETER GLASER, ESQ., SHOOK, HARDY, AND BACON; AND JEFFREY G. MILLER, PROFESSOR OF LAW, PACE UNIVERSITY SCHOOL OF LAW Mr. GUZY. Thank you, Chairman McIntosh, Chairman Calvert, and members of the subcommittee, for the invitation to appear here today. I am pleased to have the opportunity to explain the U.S. Environmental Protection Agency's views as to the legal authority provided by the Clean Air Act to regulate emissions of carbon dioxide. Before I do, however, I would like again to stress, as has been noted, that the administration has no intention of implementing the Kyoto Protocol to the United Nations Framework Convention on Climate Change prior to its ratification with the advice and consent of the Senate. Some brief background information may be helpful to understand the context for the question of legal authority posed by the subcommittee in this hearing. In the course of generating electricity by burning fossil fuels, electric power plants emit into the air multiple substances that pose environmental concerns. Some of these are already subjected to some degree of regulation. EPA has worked with a broad array of interested parties to evaluate multiple pollutant control strategies for this industry, and has also conducted an analysis of the scope of Clean Air Act authority to accomplish these. These have arisen in a series of forums dating back to the Clean Air Power Initiative in the mid-1990's, and in developing the administration's electric utility industry restructuring proposals. On March 11, 1998, during hearings on EPA's fiscal year 1999 appropriations, Representative DeLay asked Administrator Browner about reports that EPA claimed it had authority to regulate emissions of pollutants of concern from electric utilities, including carbon dioxide. The Administrator replied that the Clean Air Act provides such authority, and agreed to supply to Representative DeLay a legal opinion on that point. Therefore, my predecessor, Jon Cannon, prepared a legal opinion for the Administrator on the question of EPA's legal authority to regulate several pollutants. The legal opinion, which I endorse, requested by Representative DeLay, was completed in April 1998, and it addressed EPA's Clean Air Act authority to regulate emissions of four pollutants of concern from electric power generation-nitrogen oxides, sulfur dioxide, mercury, and carbon dioxide. I will summarize the conclusions only as they relate to carbon dioxide. But let me emphasize that this analysis is largely theoretical. EPA currently has no plans to regulate carbon dioxide as an air pollutant, and, despite statement by others to the contrary, we have not proposed to regulate CO2. The Clean Air Act includes a definition of the term "air pollutant" which is the touchstone of EPA's regulatory authority over emissions. Section 302(g) defines air pollutant as "any air pollution agent, or combination of agents, including any physical, chemical, biological, radioactive "substance or matter which is emitted into or otherwise enters the ambient air." The opinion noted that CO2 thus would be an air pollutant within the Clean Air Act's definition. Perhaps most telling to me, Congress explicitly recognized emissions of CO2 from stationary sources, such as fossil fuel power plants, as an "air pollutant" in section 103(g) of the act. That section authorizes EPA to conduct a basic research and technology program to include, among other things, "improvements in non-regulatory strategies and technologies for preventing or reducing multiple air pollutants, including sulfur dioxides, nitrogen oxides, and carbon dioxide," among others. The opinion explains further that the status of CO2 as an air pollutant is not changed by the fact that it is found in the natural atmosphere. Congress specified regulation in the Clean Air Act of a number of naturally occurring substances as air pollutants because human activities have increased the quantities present in the air to levels that are harmful to public health, welfare, or the environment. For example, sulfur dioxide is emitted from geothermal sources; volatile organic compounds, which are precursors to harmful ground-level ozone, are emitted by vegetation; and some substances specified by Congress as hazardous air pollutants are actually necessary in trace quantities for human life but are toxic or harmful at levels higher than found ordinarily or through other routes of exposure. Phosphorus, manganese, and selenium, these are examples of such pollutants. While carbon dioxide as an air pollutant is within the scope of regulatory authority provided by the Clean Air Act, this by itself does not lead to regulation. Before EPA can actually issue regulations through a rulemaking process governing a pollutant, the Administrator first must make a formal finding that the pollutant in question meets specific criteria laid out in the act. Many of these provisions share a common feature, in that the exercise of EPA's authority to regulate air pollutants is linked to a determination by the Administrator regarding the air pollutant's actual or potential harmful effects on public health, welfare, or the environment. This is true for authority under section 109 of the act to establish National Ambient Air Quality Standards. By the way, section 302(h), a provision dating back to the 1970 version of the Clean Air Act, defines "welfare," for purposes of secondary effects, as including "effects on soil, water, crops, vegetation .. weather, visibility, and climate," among others. So, that since 1970, the Clean Air Act has included effects on climate as a factor to be considered in the administration's decision as to whether to list an air pollutant under section 108. Analogous threshold findings are required before the Administrator may establish new source performance standards under section 111, or list and regulate a pollutant as hazardous under section 112. Given the clarity of the statutory provisions defining air pollutants and providing authority to regulate them, there is no statutory ambiguity that could be clarified by reference to legislative history. Nevertheless, Congress' decision in the 1990 amendments not to adopt additional provisions directing EPA to regulate greenhouse gases by no means suggests an intention to limit pre-existing authority to address any air pollutant that the Administrator determines meets the statutory criteria for regulation under a specific provision of the act. Let me reiterate one of the central conclusions of the EPA memorandum. "While CO2, as an air pollutant is within EPA's scope of authority to regulate, the Administrator has not yet determined that CO2 meets the criteria for regulation under one or more provisions of the Act." That statement remains true today. EPA has not made any of the act's threshold findings that would lead to regulation of CO2 emissions from electric utilities, or any source. Is it well-crafted, as Chairman McIntosh asked, to this goal? I would just point out the second finding of the EPA memo, that existing authority does not easily lend itself to a cost-effective mechanism, to impose a cap and trade program, and the administration is pledged to consult with Congress on the best mechanisms for doing So. I also wish to stress once more that while EPA will pursue efforts to address the threat of global warming through the voluntary programs authorized and funded by Congress, and will carry out other mandates of the Clean Air Act, this administration has no intention of implementing the Kyoto Protocol prior to its ratification on the advice and consent of the Senate. This concludes my prepared remarks. I ask that my full statement be submitted for the record, and would be pleased to answer any questions that the subcommittees may have. Thank you. [The prepared statement of Mr. Guzy follows:] TESTIMONY OF GARY S. GUZY GENERAL COUNSEL U.S. ENVIRONMENTAL PROTECTION AGENCY SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, COMMITTEE ON GOVERNMENT REFORM AND THE SUBCOMMITTEE ON ENERGY AND ENVIRONMENT COMMITTEE ON SCIENCE U.S. HOUSE OF REPRESENTATIVES October 6, 1999 Thank you, Chairman McIntosh, Chairman Calvert, and Members of the Subcommittees, for the invitation to appear here today. I am pleased to have this opportunity to explain the U.S. Environmental Protection Agency's (EPA) views as to the legal authority provided by the Clean Air Act (Act) to regulate emissions of carbon dioxide, or CO2 Before I do, however, I would like to stress, as EPA repeatedly has stated in letters to Chairman McIntosh and other Members of Congress, that the Administration has no intention of implementing the Kyoto Protocol to the United Nations Framework Convention on Climate Change prior to its ratification with the advice and consent of the Senate.' As I indicated in my letter of September 17, 1999 to Chairman McIntosh, 'See, e.g., Letter from Gary S. Guzy, General Counsel, to Congressman David McIntosh, September 17, 1999; Letter from David Gardiner, Assistant Administrator for Policy, to Congressman David McIntosh, June 23, 1999; Letter from David Gardiner, Assistant Administrator for Policy, to Congressman David McIntosh, August 13, 1988. |