Catherine Rothacker
U.S. Environmental Policy
Legislative History
Conflict, Congress and the Clean Air Act
The Legislative History of Greenhouse Gas Regulation
Overview
The scientific consensus that anthropogenic greenhouse gas emissions are causing global
climate change which threatens human wellbeing with more frequent extreme weather events,
rising sea levels, increased disease incidence, a shrinking food supply, and biodiversity loss is
unequivocal.1 Congressional action on addressing this pressing issue, however, has been
contentious and on the whole obstructed by politicians and their supporters who have vested
interests in delaying the regulation of fossil fuel emissions.
Tracing the historical context of a current bill under consideration, the “Defending
America’s Affordable Energy and Jobs Act,” reveals the tensions between political parties and
the federal government’s branches over whether greenhouse gas emissions should be regulated
and which body has the right to do so. This bill and similar legislation presently being
considered are assertions of congressional authority on the issue, overriding potential
Environmental Protection Agency greenhouse gas emission regulations under the “Clean Air Act
of 1970” in accordance with the United States Supreme Court case Massachusetts v.
Environmental Protection Agency.
Although previous legislative efforts, including the senatorial approval of the “United
Nations Framework Convention on Climate Change” treaty and the “American Clean Energy
and Security Act of 2009,” aimed to initiate plans for the United States to mitigate climate
change, the “Defending America’s Affordable Energy and Jobs Act” and its counterparts are by
contrast efforts to further delay effective action on this crucial issue.
Major Legislation and Legal Decisions
Current Bill under Consideration
112th Congress
S.228: “Defending America’s Affordable Energy and Jobs Act.”
This bill, which is presently being reviewed by the Senate Committee on
Environment and Public Works, aims to preempt the regulation or consideration of
greenhouse gases under current federal regulatory mechanisms, which most notably
include the “Clean Air Act,” the “Endangered Species Act,” CAFE standards, and the
“National Environmental Policy Act.” The bill declares that these existing laws were not
designed with the intention of countering global warming, and thus an executive agency
can only take regulatory action to mitigate climate change with explicit congressional
authorization. Proponents claim that greenhouse gas emission regulation would have
exceedingly deleterious effects on the United States’ economy, but their concern may
augmented by the support they receive from special interest groups opposing any
reduction in profits from fossil fuel production and use.2
Relevant Laws and Judicial Decisions
91st Congress
H.R. 17255: “Clean Air Act of 1970”
Sponsors’ primary impetus for creating the “Defending America’s Jobs and
Affordable Energy Act” was the desire to prohibit EPA efforts to use the “Clean Air Act
of 1970” and its later amendments to regulate greenhouse gases as the agency has
recently moved to do under the Obama Administration.
When the CAA was written, climate change was not a priority and legislators
were primarily concerned with more traditional air pollutants such as sulfur dioxide or
nitrogen oxides. Yet the act’s broad definition of an air pollutant as any physical or
chemical agent emitted into the ambient air which harms human or environmental health
could be used by the EPA today as justification for regulating greenhouse gases to
prevent climate change. For instance, if greenhouse gases from motor vehicles could be
shown to be contributing to air pollution likely to endanger public health or wellbeing,
the EPA would be required under the CAA to set standards on new vehicles to regulate
their emission.
Because the sweeping language of the CAA could potentially cover the regulation
of greenhouse gases linked to climate change, the “Defending America’s Jobs and
Affordable Energy Act” seeks to establish that only Congress, not the EPA, can regulate
this class of emissions.3
U.S. Supreme Court, 2007 Term
Massachusetts et al., Petitioners v. Environmental Protection Agency et al.
Under the Bush Administration, the EPA did not choose to use the CAA as
described above to regulate greenhouse gases, and in response, private organizations and
later individual states concerned about the harmful effects of climate change petitioned
the agency to take this step. The EPA denied their petition, and the case eventually came
before the U.S. Supreme Court, which ruled in favor of the petitioners.
The court held that contrary to the agency’s claim that it did not have the
authority to regulate these emissions, given the actual and imminent risk of harm posed
by climate change, greenhouse gases fit well within the CAA’s definition of air
pollutants, and the EPA thus had the duty to protect public health and welfare through
mechanisms such as increasing mileage standards. To avoid this requirement, the EPA
would have to establish that greenhouse gases do not contribute to climate change or
provide a reasonable justification for its refusal to determine if they do.
The “Defending America’s Affordable Energy and Jobs Act” can thus be viewed
as a Congressional response to this ruling, clarifying that only Congress can decide
whether greenhouse gases are regulated.4
Previous Congressional Efforts to Mitigate Climate Change
102nd Congress
Treaty 102-38: “United Nations Framework Convention on Climate Change”
When climate change first rose to prominence as a global issue and international
Earth Summit talks were held in Rio de Janeiro in 1992, President Gorge H.W. Bush
signed the United Nations Framework Convention on Climate Change, and the U.S.
Senate ratified the agreement later that year.
Signatories of the UNFCCC agreed to stabilize greenhouse gas concentrations at a
level which would prevent dangerous anthropogenic interference with the climate system.
Although the accord is legally non-binding, it sets forth a plan for future protocols to set
mandatory emission limits.
This early assertion of congressional support for climate change mitigation efforts
is like the “Defending America’s Affordable Energy and Jobs Act” in that it
demonstrated the legislative branch’s desire for leadership on the issue of regulating
greenhouse gas emissions, but the intents of two differ starkly. Whereas the UNFCCC
was a first step to taking action in the U.S. to curb global warming, S.228 seeks to close
all other pathways to greenhouse gas regulation so continued congressional inaction can
delay confronting climate change, thereby protecting the economic interests supporting
the bill’s sponsors.5
111th Congress
H.R. 2454: “American Clean Energy and Security Act of 2009”
This more recent bill exemplifies continued efforts in Congress to develop a
comprehensive, concrete plan to counter global warming. Initiatives included increasing
energy efficiency, promoting renewable energy technology, developing carbon capture
and storage techniques, funding clean transportation, reorganizing the electricity grid,
advancing green technological research, crafting strategies to adapt to a changing climate,
and, perhaps most importantly, implementing a cap and trade program to reduce
greenhouse gas emissions by 83% of 2005 levels by 2050.
Opponents of the bill cited economic concerns and continued scientific
uncertainty as their primary reasons for not supporting the bill, and they ultimately
derailed the effort to pass it. The failure of this bill to become law led the EPA under the
Obama Administration to develop plans to regulate greenhouse gas emissions under the
Clean Air Act and caused the resulting legislative backlash, including the “Defending
America’s Affordable Energy and Jobs Act.”6
Comparable Current Legislation
112th Congress
H.R. __: “The Energy Tax Prevention Act of 2011”
S. 231: “EPA Stationary Source Regulations Suspensions Act”
These bills are similar to the “Defending America’s Affordable Energy and Jobs
Act” being proposed to counter EPA efforts to regulate greenhouse gases.
The “Energy Tax Prevention Act of 2011” is slightly narrower than S.228, and
would simply amend the CAA to prohibit the EPA from regulating greenhouse gases due
to concerns about climate change by explicitly excluding greenhouse gases from the
law’s definition of air pollutant, countering Massachusetts v. Environmental Protection
Agency’s interpretation that the law could apply to gases like carbon dioxide and
methane.7
Currently in the Senate’s Committee on Environment and Public Works, the even
more narrowly interested “EPA Stationary Source Regulations Suspension Act” would
suspend any EPA carbon dioxide or methane regulation for stationary sources, most
notably coal-fired power plants given the coal-rich home state of the bill’s sponsor, for
two years, only allowing greenhouse gas emissions from motor vehicles to be regarded as
pollutants under the CAA.
Any traction these bills or the “Defending America’s Affordable Energy and Jobs
Act” gain will be evidence of the politicization of climate change and the strength of
special interests groups opposing fossil fuel use regulation and further delaying
productive action on one of the most significant environmental issues of our time.8
Sources
1. Oreskes, Naomi. “The Scientific Consensus on Climate Change.” Science Magazine
306 (2004): 1686.
2. U.S. Senate. 112th Congress, 1st Session (2011). “S.228, Defending America’s
Affordable Energy and Jobs Act.” Version 1: 1/31/2011. (Full Text of Bill: the Library
of Congress, THOMAS Program Online).
3. U.S. House of Representatives. 91st Congress, 2nd Session (1970). “H.R. 17255, Clean
Air Act of 1970.” Incorporated into U.S. Code as Title 42, Chapter 85. (Content and
Text of Bill: United States Environmental Protection Agency Air and Radiation Program
Online, United States Supreme Court Opinion Below).
4. U.S. Supreme Court. 2007 Term, No. 05-1120. Massachusetts et al., Petitioners v.
Environmental Protection Agency et al. (Full Text of Case: The Supreme Court of the
United States Opinions Online).
5. U.S. Senate. 102nd Congress, 1st Session (1992). “Treaty 102-38, United Nations
Framework Convention on Climate Change (Full Text of Treaty: the Library of
Congress, THOMAS Program Online and UNFCCC Online).
6. U.S. House of Representatives. 111th Congress, 1st Session (2009). “H.R. 2454,
American Clean Energy and Security Act of 2009.” (Full Text of Bill: the Library of
Congress, THOMAS Program Online).
7. U.S. House of Representatives. 112th Congress, 1st Session (2011). “H.R. ___, the
Energy Tax Prevention Act of 2011.” (Full Text of Bill Draft: Republican House Energy
and Commerce Committee Online).
8. U.S. Senate. 112th Congress, 1st Session (2011). “S.231, EPA Stationary Source
Regulations Suspension Act.” (Full Text of Bill: the Library of Congress, THOMAS
Program Online).