Last week, in Center for Biological Diversity v. EPA, Judge Henry Kennedy reminded us that, in thinking about whether the existing Clean Air Act requires EPA to address climate change, the actual words of the statute matter. The scope of the climate problem does not obviate the need to parse individual provisions of the CAA and Massachusetts v. EPA did not resolve all issues.
CBD petitioned EPA to regulate GHG emissions from nonroad engines and vehicles, under § 213 of the CAA, and from aircraft engines, under § 231 of the CAA. EPA did issue advanced notices of proposed rulemakings in response to the petitions, but CBD sued, arguing that EPA has not gone far enough.
The court rejected CBD’s claims regarding nonroad engines, because § 213 provides only that
If the Administrator determines that any emissions not referred to in [a prior paragraph] from new nonroad engines or vehicles significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, the Administrator may promulgate (and from time to time revise) such regulations as the Administrator deems appropriate . . . .
To the court, the “if” and “may” language, combined with the overall structure of § 213, mandates a conclusion that EPA does not have an obligation to make an endangerment finding with regard to nonroad engines. Even so, as the court noted, EPA does have an obligation to respond fully to CBD’s petition, and EPA’s ultimate action on the petition will itself be subject to judicial review.
With respect to the petition under § 231 regarding airplane engines, the different language of that section compelled a different conclusion.
The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.
Again looking at the specific language of the statute, including the use of the mandatory “shall,” the court concluded that EPA cannot refuse to make endangerment findings.
The simple lesson from the case? The specific language of the statute matters. The bigger lesson? Unless Congress acts, the courts are going to be requiring EPA to take action with respect to GHG emissions under existing CAA authority.
We’re thus left in the same bind we’ve been in since Waxman-Markey collapsed. EPA does not have the authority that it and the environmental community want and it cannot regulate GHG efficiently. At the same time, EPA does have authority that conservatives wish it did not have. True climate skeptics may never be convinced, but it still seems that a deal should be possible among environmentalists and conservatives who acknowledge the reality of climate change.
Hope springs eternal.