Threats to Clean Air Act Authority: A Primer

There have been rumblings this week of another push to block the Obama administration’s authority to regulate greenhouse gas emissions under the Clean Air Act, and for those of you who haven’t kept up with every jot and tittle of this fight, I thought today might be a good time to bring you all up to speed.

What is the Clean Air Act, and why does it matter?

The Clean Air Act was passed in 1963 and has been significantly amended over the last several decades, with the last major changes coming in 1990. The law is long and complicated, but its overall goal is to protect human health from pollutants in the air. (For the wonks among us, the Environmental Protection Agency has a copy of the act, with all its various amendments, here.)

The act is significant for its many successes. Remember the hole in the ozone layer that we heard so much about in the ’90s? The act essentially banned the use of chemicals that deplete ozone, and scientists now say that, though it will take decades for the ozone layer to return to normal, its depletion is slowing.

Why can the Obama administration regulate greenhouse gas emissions under the act?

The Clean Air Act wasn’t written with greenhouse gases in mind, but in a 2007 decision, the Supreme Court found that EPA could regulate greenhouse gas emissions under the act’s authority. In fact, if the agency determined these sorts of emissions endangered public health, it would have a legal obligation to regulate them, according to the court’s interpretation of the law.

In its so-called endangerment finding, EPA concluded that greenhouse gas emissions do indeed threaten public health. According to the court’s decision, that finding compelled the agency to regulate the emissions.

Though the White House has stated its preference to deal with climate change in Congress, administration officials have said they will move forward with regulation under the Clean Air Act if lawmakers are unable to pass climate legislation. As I’ve reported countless times here, there is about a zero percent chance that the Senate will pass climate legislation that puts a cap on carbon pollution this year. And, depending on the outcome of the mid-term election, it will be an uphill battle next year too.

Who is threatening the Obama administration’s authority under the act, and why?

EPA regulation of greenhouse gas emissions under the Clean Air Act is the nightmare scenario for Republicans and many Democrats, who see regulation under the act as much more complicated than passing legislation to address the issue. But Republicans and moderate Democrats clearly did not see the threat of EPA regulation as reason enough to vote for a cap-and-trade bill: they have come to an impasse with their more liberal counterparts on the legislation.

Sen. Lisa Murkowski (R-Alaska) tried and failed to pass a resolution that would have essentially blocked the administration from regulating greenhouse gas emissions under the Clean Air Act, but the Senate rejected the measure in June. Sen. Jay Rockefeller (D-W.Va.) has also emerged as a major player in the debate, offering his own bill to delay EPA’s action.

Now, on to this week’s developments:

• Early this week, a number of press reports said a Senate Appropriations Committee mark-up of an EPA and Interior Department appropriations bill could give lawmakers an opportunity to block EPA regulation of greenhouse gas emissions. The reports suggested that an amendment blocking or delaying the EPA regulation could pass.
• On Tuesday, the Appropriations Committee canceled the markup of the EPA/Interior appropriations bill.
• Speculation then turned to Rockefeller, who said that there will be a vote this year on his measure to delay by two years EPA’s ability to regulate greenhouse gases under the Clean Air Act. The time frame for a vote is unclear.
• Now, Politico and others are reporting that Sen. Kit Bond (R-Mo.) could offer Rockefeller’s proposal as an amendment to the defense authorization bill.

Looming over all of this are the administration’s efforts to move forward on greenhouse gas regulations. In fact, EPA Administrator Lisa Jackson said this week that she plans to issue guidance on the regulations soon.