was generally thought to have gasped its last breath in Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935). Perhaps American Trucking marks the beginning of the revival of the nondelegation doctrine, but even in that event, Congress has a responsibility to jealously guard its authority--not for the sake of

power, but for the sake of the liberties of Americans which depend upon adherence to the principle of separation of powers.

III. CONCLUSION

A central principle of administrative law is that the authority of

administrative agencies is limited to that which has been granted by Congress. This principle derives from the constitutional doctrine of separation of powers. Separation of powers is not just a simple matter of government organization or of convenience. It is a fundamental principle of American constitutional law as important to the protection of private and public liberty as the Bill of Rights.

It is surely fair to assume that EPA is motivated to serve the public good in everything it does including its proposed regulation of carbon dioxide. But good intentions do not satisfy the standards of the Constitution. If carbon dioxide

emissions are of sufficient concern to warrant federal regulation, it is not asking too much that Congress provide the authorization required by the Constitution.

Mr. MCINTOSH. Thank you, Mr. Huffman. I appreciate your remarks. As I said, the complete written text of all of your testimony will be put into the record.

I have a couple of questions and then we will recognize my fellow panelists. First, Mr. Guzy, you had mentioned the general provision on pollutants in section 302(g), and then to bolster a very broad interpretation of what that is in the Cannon legal memorandum you cite section 103(g) as proof that CO2 is a pollutant within the meaning of the Clean Air Act because it is listed there. But in that same section Congress put into law "Nothing in this subsection shall be construed to authorize the imposition on any person of pollution control requirements." Similarly, the provision in the Clean Air Act mentioning global warming, section 602(e) stipulates "The preceding sentence shall not be construed to be the basis of any additional regulation under this chapter."

How do you interpret these congressional restrictions in using those subsections to bolster your argument about the general text? Mr. GUZY. Mr. Chairman, it is important to keep in mind why the memorandum cites 103(g)(1). It does not cite it, and I want to be very clear about this, as in and of itself statutory authority for regulation of CO2.

Mr. MCINTOSH. I understand that it cites it to bolster the argument about section 302.

Mr. GUZY. But what it does absolutely clearly is indicate that Congress regarded carbon dioxide as "an air pollutant." And the limiting provisions that you have cited here, which basically say that nothing in this subsection shall be construed to authorize the imposition on any person of pollution control requirements, go to the question of do we have authority to draw from a technology and research program particular control requirements that could be imposed on sources.

That's not the issue that we're citing 103(g) for. What we're citing it for is the clear congressional understanding that carbon dioxide from sources such as electric generating utilities, stationary sources such as that, can properly be regarded as an air pollutant and should be regarded as an air pollutant under the definitions of the act. That then gives rise to the next set of questions under the particular regulatory provision, the particular statutory provisions that we then would face were the administration to decide to move forward with that kind of an action.

The question that you asked about section 602 also is not referenced in the memorandum as a source of authority for the general understanding of Congress that, in fact, carbon dioxide should, or could, be regarded as an air pollutant.

And if I may, Mr. Chairman, make a few more general points. While Congress specified certain substances that are widespread in recognizing that there could be regulation as under the provisions for National Ambient Air Quality Standards, Congress also recognized that knowledge would change, knowledge would evolve. And so it also gave authority to the Administrator to designate new types of pollutants, as Ambient Air Quality Standards, as criteria air pollutants, the most fundamental that could be subject to a regulatory scheme. It also provided, I might add, a very elaborate regulatory process that the agency would need to go through were it

to commence that type of work. And those standards constitute quite clear limiting principles for any future agency action.

Mr. MCINTOSH. It strikes me as somewhat self-serving to select those parts where Congress explicitly says we don't intend to create regulatory authority, and then discount an explicit provision where regulatory authority was in fact rejected by Congress.

Is there any substance that you know of that does not fit the definition of air pollutant that you are putting before us in section 302?

Mr. GUZY. Again, I would refer the chairman also to the sort of next set of requirements that

Mr. MCINTOSH. No, no, no, no. Getting to that initial step, which is where you say we are at with carbon dioxide, is there any substance that would not meet that test?

Mr. GUZY. I will concede that it is a very broad definition and there is an argument for just about any substance that it could be regarded as an air pollutant under that definition.

Mr. MCINTOSH. That's what I thought. In which case, you are reading the act to be a general mandate for EPA to provide for health and welfare, because any substance qualifies under the first step, and you are saying Congress created, in the name of a Clean Air Act, a general regulatory authority for all substances if it affects health and welfare.

Mr. GUZY. I would like to be a little bit more precise about it, Mr. Chairman. First of all, I was assuming that by your question you were referring to any substance which gets into the air, and I take that as a given. But that would be necessary to qualify under the definitional section in 302. But then the question that is faced, which is a fundamental question that EPA has not yet faced, is what regulatory scheme is it then potentially subject to. And there are very clear limitations in the act that would rule out all sorts of substances. I particularly refer you to section 108, where the substance has to cause or contribute to air pollution which may reasonably be anticipated to endanger, not just affect, endanger public health or welfare, and the presence has to result from numerous or diverse mobile or stationary sources. In other words, it is susceptible to the kind of regulatory scheme that Congress set forward in the 1970 act, and then again ratified in the later amendments.

Mr. MCINTOSH. Let me ask Mr. Glaser, do you want to comment on this discussion?

Mr. GLASER. Yes, absolutely. I think the focus on whether a substance is an air pollutant within this incredibly broad definition of anything emitted into the ambient air is somewhat of a red herring, for a number of reasons. First of all, it ignores some very, very basic principles of statutory construction, including that we do not make a fortress out of the dictionary, we don't engage in overliteralism, but in construing statutory language we try to view the language in light of the overall context and regulatory program in which the language is used. So it is not enough simply to say, well, it is emitted to the ambient air, therefore it must be an air pollutant, and therefore we can go ahead and regulate it if it causes danger.

The question is, is it the type of air pollutant, is it the type of emission that Congress designed this statute to deal with? And we know what kinds of air pollutants this statute was designed to deal with. They are pollutants that are emitted to the air and are deposited and are breathed in by people and have a direct effect either on people or the environment. It is not fair, it is not correct to say that this statute was designed to deal with the type of emission, like carbon dioxide, which is emitted into the atmosphere and circulates globally in the troposphere and creates an indirect environmental impact in that sense. For that type of environmental impact, this act has no provisions that can deal with that. And that is the whole problem here.

We heard an earlier witness say the act does not just deal with local pollution, it deals with regional transport or long-range transport. It is absolutely true, the Clean Air Act has provisions that deal with wind-borne air pollution that blow pollutants downwind 50, 100, 200 miles. But that is not anything like carbon dioxide. Carbon dioxide is not an emission that goes in the air and it is blown downwind, in the sense that it is emitted in one area of the country and it is blown downwind and has an effect in another area of the country. One ton of carbon dioxide emitted in Kansas has the same overall impact on international global warming as a ton emitted in Bangladesh. So there is therefore no way that this structure created in this act can deal with it.

The NAAQS, for instance, every State has to submit an implementation plan and that implementation plan has to provide how the State is going to get into attainment for the particular NAAQS. The State is required, mandated to come up with an attainment plan that will meet the NAAQS. Now, it is true that there are regional transport issues so that upwind States have to include in their implementation plans provisions to eliminate any contribution the upwind State may be making to downwind non-attainment. But that system has no rational application whatsoever to carbon dioxide. An earlier witness said it would be useful in some way. It is not even a question of being useful. It just does not fit. It is a round peg in a square hole and you cannot presume that Congress would have intended to provide a system of regulation that just cannot possibly work.

So, in conclusion, I would simply say that to engage in this debate on what is or what may not be an air pollutant strictly within the terms of the Clean Air Act is pretty fruitless. The real question is what does the substance of the act say about dealing with a substance like carbon dioxide. And it is just not in there.

Mr. Guzy. Mr. Chairman, may I just respond very quickly?

Mr. MCINTOSH. Yes. And while you are doing that, I have got another quick question for you, which is, did you reevaluate the Cannon opinion in light of the American Trucking Association decision? Mr. GUZY. Yes. Let me just respond very quickly, if I may, to Mr. Glaser. I would just refer the subcommittees to a provision which has been in the act since 1970, was ratified again in 1977, remained in the act after the 1990 amendments, and that is section 302(h), which recognizes that welfare, the subject of secondary ambient air quality standards, can include effects on "soils, water, crops, vegetation, man-made materials, animals, wildlife, weather,

visibility, and climate, damage to and deterioration of property and hazard to transportation, as well as effects on economic values and personal comfort and well-being, whether caused by transformation, conversion, or in combination with other air pollutants," not necessarily purely inhalation routes of exposure, as Mr. Glaser suggests.

We did look at the ATA decision. One thing that I will say, that Dean Huffman and I are very much in agreement on, is that the ATA decision is an aberration, as he said. As you well know, Mr. Chairman, we have sought rehearing before the D.C. Circuit of that decision and requested a rehearing en banc before the full court. But despite our fundamental disagreement with it, that is the prevailing precedent in the Circuit at this time and we obviously want to conform our activities to it.

We have looked at that decision. Were it to stand, our sense is that there is enough clear guidance, limiting principles in this statutory construct that would suggest that in fact there is not an unconstitutional delegation of authority were EPA to go forward with some kind of regulatory approach to limiting carbon dioxide. But, again, I want to get back to my basic point, which is that EPA has not made that kind of decision and currently has no plans to do so. Mr. MCINTOSH. Right. I would have to say for the record I would disagree with your reading of that case. To me it would read more like an unconstitutional usurpation of authority by EPA that the courts were trying to prevent when they struck down those rules. Let me turn now to Mr. Calvert for questions he might have. Mr. KUCINICH. Are we going back and forth, Mr. Chairman? Mr. MCINTOSH. We were going to have the two chairmen speak first, then go back and forth. Does that work for you, Dennis? I will try to get you in before we go back to the votes.

Mr. KUCINICH. I just wanted to see what the ground rules are. I am ready to play, I just wanted to know what the rules are. Mr. MCINTOSH. Great. We were going to do each committee back and forth.

Mr. KUCINICH. OK. And we have 10 minutes? No problem.

Mr. CALVERT. I thank the chairman. There is a lot of discussion about the intent of Congress at the time of the implementation of the Clean Air Act. I would ask the chairman, there are not too many Members still here, but Congressman Dingell is here and I would ask that he would submit his testimony or letter to the record. I am sure the gentleman from Michigan would submit testimony on the intention of Congress at that time. I think it would be interesting to have in the record, especially from the minority position. So if that is not objectionable, Mr. Chairman.

Mr. MCINTOSH. There being no objection, we will hold the record open for shall we say 10 days.

Mr. CALVERT. I would ask that that be done. Ten days is fine with me.

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