Section 115 of the Clean Air Act urged as vehicle for greenhouse gas control
A former Bush EPA General Counsel has urged regulation of greenhouse gases under a rarely used 1977 amendment to the Clean Air Act entitled “International air pollution” (Section 115). Writing in the March 9 issue of the BNA Daily Environment Report, Roger Martella and Matthew Paulson state that “Section 115 could provide an effective, flexible, economically reasonable, and legally supportable tool” and advise EPA to take a “much harder look” at this section before deciding to regulate greenhouse gases elsewhere under the Clean Air Act.
Section 115 of the Clean Air Act requires EPA to provide notice to the states to revise their State Implementation Plans (SIPs) if EPA concludes, based upon receipt of a study from a duly constituted international agency, that air pollutants “emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country…” The authors argue that the Intergovernmental Panel on Climate Change is a proper international agency and that their report entitled: Climate Change 2007: Mitigation, Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change satisfies the statutory prerequisite of an international report.
If EPA were going to regulate greenhouse gases under the Clean Air Act, Section 115 offers several practical benefits. First, an endangerment finding under Section 115 for greenhouse gases would not automatically implicate other onerous sections of the Clean Air Act. This is because of the unique Section 115 endangerment finding – an endangerment outside of the United States. However, an endangerment finding within the United States is required if EPA were to regulate greenhouse gases under any other relevant section of the Clean Air Act. A domestic endangerment finding made under any relevant section of the Clean Air Act other than Section 115 could have the effect of imposing an overwhelming cascade of serious regulatory consequences under other sections of the Clean Air Act. For example, regulating greenhouse gases under Section 109 (National Ambient Quality Standard) would require an endangerment finding and could require Prevention of Significant Deterioration permitting for all major sources in an attainment area. This would stifle project development at a time when policymakers are attempting to stimulate the economy. In fact, Martella and Paulson cite a US Chamber of Commerce study that estimates that more that one million sources could become newly subject to the Clean Air Act requirements based upon greenhouse gas emissions.
Other practical benefits include regulatory flexibility that is commensurate with the international nature of air pollution. The rigidity and specific command and control requirements that accompanies a domestic endangerment finding under the Clean Air Act do not make other provisions of the Clean Air Act suitable for regulating greenhouse gases. Section 115 would allow states to provide flexible solutions with federal oversight and approval required and would allow international input. As summed up by the authors, “Section 115 provides significant flexibility in crafting programs to achieve greenhouse gas emissions reduction while also allowing for consideration of international efforts to combat this global challenge.” As the policy debate rages over whether new legislative or existing tools are best to combat climate change, these authors have brought a creative idea to the debate.
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