Any piece of legislation about which that can be said, where that argument can be used to justify regulation, is a piece of legislation which delegates more authority than Congress can delegate. I think even the U.S. Supreme Court, which has been reticent to overturn legislation on the non-delegation theory, would find that argument problematic in support of regulating CO2.

Mr. MILLER. Of course, I think I completed my sentence by saying that the first test, whether it is an air pollutant, fits almost anything that is emitted into the air, but that the second test, which is necessary before EPA does anything, is that it finds that it is an endangerment to health and welfare and that something can be done about it.

But the tradition of searching around in existing statutes to meet a present problem is one of long-standing tradition. I remember in the Nixon administration when the Environmental Protection Agency, or its predecessor actually, and the Justice Department resurrected an 1898 statute having to do with dredging harbors and rivers to begin a water pollution permitting program. That was eventually struck down, not because it was not authorized, but it was struck down because it did not comply with NEPA.

Mr. GUZY. Mr. Chairman, if I may, we believe that Congress made a fundamental policy choice when it passed the Clean Air Act to protect the public health from endangerment from air pollutants. But it did so in a very far-sighted kind of way. It did not just say here is the problem, these are solutions. It said keep looking at it because the science will evolve, the problems will evolve, you cannot be static in time. In fact, it included provisions that require us to look back every 5 years and assess using the best available science through an independent peer review process whether, in fact, we have got it right.

Mr. CALVERT. Mr. Guzy, I am very interested in clean air. I represent Riverside, CA, and anyone who represents an area in southern California is extremely interested in clean air. What I am concerned about is whether any statutory authority has been given to regulate CO2. I have heard nothing from this Congress that gives EPA statutory right to regulate CO2. I go back to the start of my questioning, I am interested in Mr. Dingell's testimony he will submit to this committee for the record as to what the intentions of the Congress was back thirty years ago under the Clean Air Act. Mr. Glaser, do you have any comment?

Mr. GLASER. Yes. The problem for the notion that there is some mop up authority in the Clean Air Act to deal with new problems as they come along, that is one thing. But we are now almost 30 years into Clean Air Act regulation. Congress has taken a look at this act a number of times and has gone back and included many, many, many more detailed provisions in the act than there used to be.

The notion about whether a substance should be mentioned in the act in order to be regulated gets us into the claim of authority that EPA could potentially regulate carbon dioxide as a hazardous air pollutant under section 112. Well, I think in 1990 Congress added 190-190-substances explicitly referenced as hazardous air pollutants and carbon dioxide is not on the list. Now, does that mean that there might be a 191st substance out there that EPA

is authorized to regulate because this substance, for instance, was not manufactured in 1990 and somebody has just discovered something about it. That may be true. But the notion that Congress in 1990 just sort of missed carbon dioxide is not credible.

Mr. CALVERT. My time has expired, Mr. Glaser. But just as a final point, and well-taken, it seems to me that people were talking about at what point does CO2 become dangerous or gets over the natural level. I guess the only comment I would have is if you cannot regulate it, it is good CO2, and if you can regulate it, it is bad CO2. It is just determined on which type of CO2 we regulate. With that, Mr. Chairman, my time has expired.

Mr. MCINTOSH. Thank you, Mr. Calvert.

Let me recognize now our colleague, Mr. Kucinich. Why don't you also feel free to take Mr. Costello's time.

Mr. KUCINICH. I do not think I will need that much time. I want to thank the Chair very much for calling this hearing, and also recognize Mr. Calvert, who I had the pleasure of actually traveling with to the Conference of Parties in Buenos Aires, Argentina to discuss some of these same issues. So, I am glad to have the opportunity to share a panel with you again. I look forward to some of these important issues that are discussed.

From the outset, what I would like to say, and I think many members of this committee are fully aware, including, and perhaps especially Mr. Barr, is that I am a firm believer in Congress exerting its authority. As some of you will recall, I am a co-plaintiff with Mr. Campbell of California in challenging the administration's usurping of congressional authority on Article 1, Section 8 of the Constitution, the ability to declare war. So I am not ready to cede congressional authority on anything. I just wanted to share that with you. And that is why I think that Mr. McIntosh's point is well-taken in asking these questions. But I have some questions that I would like to ask that kind of approach this from a slightly different perspective, as you may expect.

First of all, welcome to all of the panelists. Professor Huffman, I have actually had the opportunity to visit your campus a few times there in Portland, and it is beautiful. It is a short walk from Tom McCall Park, who was a great environmentalist who I admire greatly, who actually influenced my career in some ways. What he did to help reclaim that Oregon coastline I thought was one of the most important contributions that any public official has made in this country. So I have a real affection for Portland and for the area, and it is nice to see you here.

I would like to start with asking Mr. Guzy, I have read Dr. Huffman's written testimony in which he refers to EPA's proposed regulation of carbon dioxide. I came a little bit late so I may have missed something. Has the EPA proposed regulations of carbon dioxide?

Mr. GUZY. No. Not in any way.

Mr. KUCINICH. OK. So, if there is any statement relating to EPA regulation of carbon dioxide, I am reading from Dr. Huffman's testimony, I think it is page 4, "EPA's proposed regulation of carbon dioxide," you are saying that EPA has not proposed such regulation?

Mr. GUZY. As he uses it there, we have not. We have used our authority to

Mr. KUCINICH. I understand that.

Mr. GUZY. Referenced under some other provisions, where that is appropriate, to address general environmental effects, particularly under title VI. But to address carbon dioxide as carbon dioxide, EPA has not proposed any regulation.

Mr. KUCINICH. Also, I am again looking at Dr. Huffman's testimony where he cites the American Trucking case. Are you familiar with that case?

Mr. GUZY. Yes, I am.

Mr. KUCINICH. This may just be a question of linguistic construction, but maybe you can help me, Mr. Guzy. I am reading this on the section about government of limited and divided powers. At issue in American Trucking was whether or not the EPA had acted within its authority in setting new standards for particulate and ozone ambient air quality. The court acknowledge that, and then in parentheses, "unlike carbon dioxide," EPA has expressed statutory authority to regulate ozone and particulates, and it goes on. I am not that familiar with American Trucking. Did they mention carbon dioxide in any way?

Mr. Guzy. I currently do not remember the court mentioning carbon dioxide.

Mr. HUFFMAN. That is my parenthetical, not the court's.

Mr. KUCINICH. Oh. So maybe brackets would have been better, professor.

Mr. HUFFMAN. Thank you for the correction.

Mr. KUCINICH. My background is in communications. I am not a law professor. I am just a humble Member of the Congress.

Mr. HUFFMAN. I apologize for that. The editors of my law review would have corrected me as well. So, thank you.

Mr. KUCINICH. I do not work out of those lofty environs. I am just trying to figure out what the case said. Thanks.

I would like to know, Mr. Guzy, would you comment on the paper entitled, "CO2: A Pollutant" which was prepared for the National Mining Association by Mr. Glaser and others.

Mr. GUZY. Well, it does in my estimation draw a number of sweeping conclusions from some fairly thin facts. At times, it, in my view, does not fairly present the statutory text that is presented. For example, in its treatment of 103(g), which is in our memorandum an absolutely critical provision to make clear that Congress was well aware that carbon dioxide could be regarded as an air pollutant, instead of recognizing that Congress regarded it as an air pollutant, it says it is an "item." It says carbon dioxide is an item to be addressed in a technology program, a technology and research development program. That seems to be a fundamental fatal oversight in the analysis of the statutory text that is in there.

Similarly, a number of the arguments on legislative history seem to be fairly sweeping in their conclusions. For example, Congress well knew how to require of EPA that there be a study before it engaged in regulation; mercury, the utility study, the Great Waters Study, all of which require that we study, and submit reports to Congress before engaging in any regulatory steps. That is abso

lutely absent with respect to carbon dioxide. One would expect giving the proper deference to Congress' intent that

Mr. KUCINICH. Is it possible that as science evolves and technology evolves, when you look at what might have been the intent at the time, that to put it into the context of advanced science may be somewhat difficult, may present a challenge?

Mr. GUZY. If I understand your question, one of the things that is most striking about the Clean Air Act is how foresighted Congress was in 1970 when it enacted it, that it recognized that the problems may change, that technology may change, that science may change. Not only did it list 188 HAPs, it also provided authority to the Administrator to remove some of those if appropriate, or to add others, if needed. Not only did it say you adopt national ambient air quality standards for fundamental air quality issues, but it gave the Administrator authority to add others if needed, if they endanger public health or welfare.

So, that recognition that action should be premised on the best available science and that that science will change is really embodied in the concept of the Clean Air Act. That is among the fundamental choices that Congress made back then and has ratified every time since when it has passed and reaffirmed the Clean Air Act.

Mr. KUCINICH. OK. I would just like to say again that, as a Member of the Congress of the United States, I am not here to represent administrative opinion, I have constituents who are very concerned about some of these issues relating to air quality and to global climate change and things like that. As a Member of Congress, just as my colleagues here want to insist that Congress plays a role in these things, I want Congress to play a role, too. Thank you very much. Thanks to the panelists.

Mr. MCINTOSH. Thank you, Mr. Kucinich.

Before turning the questioning over to Mr. Ehlers, let me just make sure I understand what you were just saying, Mr. Guzy. That a flaw in Mr. Glaser's analysis is that he talks about the fact that there is no study, and the fact that there is no study really means that Congress thought it might regulate CO2 as a pollutant? I do not mean to be at all facetious, but I was not following your argument there.

Mr. GUZY. My argument is that when Congress wanted to require additional scientific assessment before authorizing regulatory action under pre-existing statutory requirements it knew perfectly well how to require that. It did it for mercury, it did it for deposition of air pollutants in the Great Waters, and it did not do it for CO2. Now, we would not say that in itself provides an indication of statutory authority to move ahead. But combined with the other provisions that we have cited, we believe that it is inappropriate to suggest that there is some limitation on potential EPA action that can be derived from any of the succeeding activities that Congress engaged in on CO2.

Mr. MCINTOSH. But would you not acknowledge that it is at least an equally plausible interpretation that Congress, by not requiring that study, did not think of regulating CO2 as a pollutant?

Mr. GUZY. I would find that hard to believe in view of the very clear language in section 103(g) where Congress, in fact, refers to carbon dioxide as an air pollutant. That seems very unambiguous.

Mr. GLASER. Mr. Chairman, if I could just jump in. I actually would reach exactly the opposite conclusion than Mr. Guzy is reaching on the issue of study. As he said, the act did include provisions in 1990 amendments for study and then a decision by EPA whether to regulate. In contrast, there were provisions in the Clean Air Act I believe for study of methane but there was no corresponding provision of the act that said, well, if they determine that methane is a problem, then regulate. That is not in there. It is not in there anywhere.

I would say that the argument about what the act says about studies supports the notion that Congress very, very, very carefully drew the line about what it wanted to do with CO2, and it did not include regulation.

Mr. MCINTOSH. OK. I apologize to Mr. Ehlers for using some of his time. I just wanted to make sure I understood what the points were there.

Let me recognize Mr. Ehlers for questioning.

Mr. EHLERS. Thank you, Mr. Chairman. Both of us have to go vote in committee immediately. I had a list of questions but I will cut to the chase here and just make a comment.

Mr. Guzy and Mr. Miller, you have both made good cases for the proposition that the EPA has the authority to regulate. These are good cases but they are not convincing. I think the crux of the matter, just speaking as a Member of Congress, is a point that Mr. Huffman made. I might also say that as a scientist, I am very concerned about the increasing amount of CO2 and what it is likely to do in climate change, not so much global warming but climate change of various sorts. But Mr. Huffman made some basic points and I think they get to the crux of the matter, as I see it as a Member of Congress.

The point is, simply, I do not think the Congress in 1970 really envisioned CO2 as ever being a problem. I think the Congress in 1990 began to discern that it was a problem, although I recognize that legislation started much earlier than 1990. But if you would say what is the best action that could be taken today to control the increase of CO2, I would have to give an answer as a Member of Congress that the Congress should look at it, because I am not at all convinced that EPA's activities, if they would operate within their charter, is the most efficient way of dealing with the doubling of CO2. For example, increasing CAFE standards, which I believe is in the province of the Department of Transportation, and we, of course, legislate that, might be a much more efficient way. To simply say that we have to double the CAFE standards would greatly reduce CO2 emissions. Or, perhaps we should double the gas tax. And as a Republican, I would have to add I would compensate by lowering the income tax or something else so it is revenue neutral. But, nevertheless, that would be an effective way of reducing CO2 emissions.

In terms of power production, you could get rid of immense amounts of CO2 from plants by engaging in a mammoth expansion of our nuclear power program. That would also not be environ