Today's CAA a Blunt Instrument for GHG Control

The Environmental Forum, Vol. 26 Issue 2 pp.54

March 2009

By Robert Nordhaus

How long should the Obama Administration wait for Congress to act on climate change? Bob Nordhaus responds.

Should EPA regulate greenhouse gases under the Clean Air Act? EPA’s Advance Notice of Proposed rulemaking issued last July devoted 166 Federal Register pages to that question, in a bizarre face-off between EPA and eight other executive branch agencies. Thousands of pages of public comment followed. What can be added at this juncture? Three key points:

First, there appears to be little dispute that the Clean Air Act is, at best, a blunt instrument for GHG control. There appears to be no viable legal theory under which an economywide cap-and-trade program can be established under the CAA (and there is serious question as to whether such a program could be set up even on a more limited basis for large stationary sources). For that reason, an explicit, economy-wide price signal for carbon would appear out of reach under existing law.

Second, in contrast to an “upstream” cap-and-trade program which controls emissions from small sources by regulating their fuel suppliers, the CAA’s tools for controlling emissions from vehicles and small stationary sources are limited.

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Reprinted with permission by the Environmental Law Institute.