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

memorandum, entitled “EPA's Authority to Regulate Pollutants from Electric Power Generation Sources."

The Cannon memorandum was - and remains - controversial. Regulating CO2 to curb "greenhouse pollution" is the sum and substance of the Kyoto Protocol. The Cannon memorandum implies that EPA already has the power to implement Kyoto-style emission reduction targets and timetables in the U.S. 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 established by 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 that is below the current atmospheric level, the entire United States would be out of attainment even if every factory and power plant shut down. Conversely, if EPA were to set a NAAQS for CO2 that is above the current level, the entire country would be in attainment, even if CO2 emissions suddenly doubled. The attempt to regulate CO2 through the NAAQS program would appear to be an absurd and futile exercise. This suggests that Congress, when it created the NAAQS program, never intended EPA to regulate CO2.

Third, 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 - and that is turning the central principle of administrative law on its head. Under our system of government, agencies have only those 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 with respect to CO2 is EPA General Counsel Gary S. Guzy. Mr. Guzy, I appreciate your willingness to step up to the plate and address some tough questions. Mr. Peter Glaser, of the law firm of Shook, Hardy and Bacon; Professor James Huffman, Dean of Lewis & Clark Law School, and Professor Jeffrey Miller of Pace University School of Law will also speak to the issue of EPA's legal authority under the Clean Air Act. Thank you for participating in this forum.

I would also like to welcome the members of the science panel: Dr. Patrick Michaels, Professor of Environmental Sciences at the University of Virginia and Senior Fellow in Environmental Studies at the Cato Institute; Dr. Keith Idso, Vice President of the Center for the Study of Carbon Dioxide and Global Change; and Dr. Chris Field, Staff Scientist at the Carnegie Institution.

Mr. CALVERT. I would like to thank the gentleman from Indiana, Mr. McIntosh, for his interest and willingness to host this hearing between our two subcommittees. And I want to thank my good friend Mr. Costello from Illinois for attending also. I would also like to thank our witnesses today for their participation in this hearing. Mr. Chairman, with the number of witnesses before us today, I will keep my remarks brief, in hopes that we will have ample time for questions.

A core premise of the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Clinton-Gore administration's Climate Change Technology Initiative is the theory that atmospheric buildup of greenhouse gases, principally carbon dioxide, caused by burning fossil fuels will destabilize the Earth's climate and trigger all manner of catastrophic events.

The Kyoto Protocol sets specific targets and timetables for a basket of six greenhouse gases, including CO2, and, if ratified by the United States and entered into force, requires the United States to reduce its net emissions by 7 percent below the 1990 levels in the 2008-2012 timeframe. I might note that the Science Committee has held numerous hearings on this in the past 2 years on the Protocol, and knows its real story-energy use will be more expensive, economic growth will be jeopardized, and American families will pay dearly for a flawed treaty. The administration has tried hard to gloss over the U.N. treaty's fatal flaws, but it cannot sugarcoat the harsh realities that it would inevitably bring to our economy and to our way of life.

The administration has repeatedly stated that it has no intention of implementing the Protocol prior to its ratification, with the advice and consent of the Senate. However, the April 10, 1998 legal opinion by then EPA General Counsel Jonathan Cannon that the Clean Air Act authorizes EPA to regulate CO2 has triggered concern about a possible "backdoor" implementation of this Protocol, a concern which I share, and I am sure everyone here is concerned about. In fact, EPA's sweeping interpretation of its powers under the Clean Air Act would allow it also to regulate other greenhouses gases, such as methane or even water vapor and clouds, which account for about 96 percent of the greenhouse effect.

The EPA opinion also notes that before it can issue regulations governing a pollutant under the Clean Air Act, the EPA Administrator must make a determination that the pollutant is "reasonably anticipated to cause or contribute to adverse effects on public health, welfare, or the environment."

I am looking forward to today's testimony from our panel of legal experts on the EPA opinion, as well as from our scientific panel who will address the questions of whether man-made emissions of CO2 also adversely affect public health, welfare, or the environment.

With that, Mr. Chairman, I would yield back the balance of my time.

[The prepared statement of Hon. Ken Calvert follows:]

COMMITTEE ON GOVERNMENT REFORM

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES AND REGULATORY AFFAIRS
and