Chapter 10
The Legal Authority for EPA Action
The EPA has the authority — and the responsibility — to act on climate change.
“The Clean Power Plan is…just another example of the EPA doing its job to ensure that polluters account for the cost of their pollution in a manner that will result in substantial net economic benefits to the public.”
— NYU Law School professor and Dean Emeritus Richard Revesz
The U.S. Environmental Protection Agency has the authority and responsibility to reduce carbon pollution under the Clean Air Act, the landmark 1970 law that has led to the cleaner and healthier environment that we enjoy today.
“I believe we’re following what the Clean Air Act requires,” Janet McCabe, the EPA’s acting assistant administrator for the office of air and radiation, told the Senate Environment and Public Works Committee. “This is a statute that Congress enacted to protect public health from air pollution.’’
In 2007, the U.S. Supreme Court ruled, in Massachusetts v. EPA, that the agency could limit greenhouse gases if they endanger the public’s health or welfare. The case grew out of efforts — opposed by the George W. Bush administration — to reduce emissions from motor vehicles, which account for about one fourth of the nation’s greenhouse gas emissions.
After rigorous scientific review, the EPA in 2009 issued an “endangerment finding” that carbon dioxide and other heat-trapping gases do indeed threaten public health and welfare. “In both magnitude and probability, climate change is an enormous problem,” the agency concluded.
That led the Obama administration to set carbon pollution and fuel-economy standards for new cars and light-duty trucks in 2010 and 2012. The standards are projected to keep six billion metric tons of carbon pollution out of the atmosphere over the life of the vehicles. The administration also has set an initial round of carbon pollution and fuel efficiency rules for heavy-duty trucks and is expected to propose a further round of standards for trucks this summer.
In 2011, the Supreme Court addressed climate change again, this time holding in American Electric Power v. Connecticut that the EPA has the authority to curb carbon pollution from the nation’s fleet of power plants under the very section of the Clean Air Act that the EPA is now using to establish the Clean Power Plan.
“The claim that the Clean Power Plan is unprecedented and unconstitutional is wrong on the facts and wrong on the law.”
Opponents of government action went back to court. But a three-judge panel of the U.S. Court of Appeals for the District of Columbia in 2012, in Coalition for Responsible Regulation v. EPA, upheld the agency’s careful determination, based on a mountain of scientific evidence, that carbon dioxide and other heat-trapping pollutants threaten our health and our planet. The Supreme Court in 2013 rejected appeals for further review of the endangerment finding.
As the EPA moves to limit carbon pollution from power plants, industry groups and some states are challenging the agency’s authority to act to curb the single largest contributor to dangerous climate change.
Many legal experts say the EPA is on sound legal footing.
New York University law professor Richard Revesz testified at a congressional hearing that the Clean Power Plan is “well justified under the Clean Air Act and the Constitution and is consistent with over 30 years of regulatory practice, under administrations of both political parties.”
“The claim that it is unprecedented and unconstitutional is wrong on the facts and wrong on the law,” Revesz wrote in The Hill.
While constitutional scholar Laurence H. Tribe, working for Peabody Energy, the nation’s largest coal company, has attacked the Clean Power Plan, two of his Harvard Law School colleagues with expertise in environmental law — Jody Freeman and Richard J. Lazarus — have dismissed his arguments as “ridiculous” and “wholly without merit.”
“If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative,” they wrote on Harvard Law Today. “The harm [the] EPA seeks to address with its power plant rule not only affects future generations, but also current ones already managing the impacts and risks of climate change.”
“In both magnitude and probability, climate change is an enormous problem.”
Michael B. Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, wrote in The Hill that the EPA is acting with “solid constitutional foundation.”
Lisa Heinzerling, a Georgetown University law professor, disputed Tribe’s suggestion that the Clean Power Plan commandeers state governments in violation of the principles of federalism embodied in the Tenth Amendment.
The Clean Power Plan, she told a Senate Environment and Public Works subcommittee, “does not require the states to do anything. It merely gives them the opportunity to develop their own plans for reducing carbon dioxide. Giving states the option of finding their own way to solve a problem does not offend constitutional principles of federalism; it respects them.”
Another one of Tribe’s key arguments against the Clean Power Plan — that it amounts to taking property in violation of the Fifth Amendment — can also be dismissed. It’s a breathtaking argument, but if it had any force, it would have been impossible for the government to take toxic lead out of gasoline or paint, to ban cancer-causing asbestos insulation, to eliminate ozone-destroying CFCs, and on and on, without each time paying the polluters.
In October 2013, NRDC issued a paper on the EPA’s authority under the Clean Air Act to limit carbon pollution from power plants. “The Supreme Court has repeatedly held that the Constitution does not require taxpayers to pay corporate polluters to stop polluting,” it stated. “Rather, it is a proper role of federal, state, and local governments to limit industrial activities that endanger public health and welfare, without compensating the companies that create the risks.”
From Clean Power: The Case for Carbon Pollution Limits
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