New Wine Into Old Bottles: The Feasibility of Greenhouse Gas Regulation Under the Clean Air Act

New York University Environmental Law Journal, Vol. 15 pp.53

March 15, 2007

By Robert Nordhaus

On November 29, 2006, Massachusetts v. EPA was argued before the United States Supreme Court. Much has already been written, and undoubtedly much more remains to be written, on the central legal issues of the case: the petitioners’ standing, the authority of the Environmental Protection Agency (EPA) under the Clean Air Act (CAA or “the Act”) to regulate carbon dioxide (CO2) and—assuming EPA has such authority—whether EPA lawfully declined to regulate motor vehicle CO2 emissions under title II of the CAA.

This essay addresses a different set of issues: If the Court were to decide that EPA was authorized or required to regulate CO2 under the CAA, could EPA construct a domestic program to regulate CO2 emissions and other greenhouse gas (GHG) emissions under the statute in its present form and would such a program be a comprehensive and cost-effective means of controlling such emissions?

This essay concludes that were the Court to hold EPA had authority to regulate CO2 emissions under existing law, the CAA could be effective to regulate CO2 emissions from large sources, such as electric generators, and to set CO2 emissions standards for new motor vehicles. However, because of gaps in the potential coverage of CO2 (and other GHG) emissions, impediments to the establishment of a national cap-and-trade system, and limitations on the control of motor vehicle emissions, a regulatory program under the CAA would be significantly less effective and more costly than a program specifically designed to control GHG emissions.

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