By Jonathan H. Adler

(originally published in The Washington Times, 12/27/1999)

Could the Environmental Protection Agency unilaterally begin to regulate emissions of carbon dioxide and other greenhouse gases without Congressional approval? It seems to think so. In the past eighteen months, two successive EPA general counsels told Congress that greenhouse gases meet the regulatory definition of "air pollutants" under the Clean Air Act. This October, EPA General Counsel suggested that there were few, if any, legal barriers to the EPA's regulating greenhouse gases, adding that EPA "has made no determination to date to exercise [its] authority" to regulate greenhouse gases under the Act. Now some environmentalists are calling EPA's bluff.

On October 20, a motley rabble of interest groups filed a petition with the EPA to compel the regulation of greenhouse gases. The petition, drafted by the International Center for Technology Assessment, was signed by groups ranging from Public Citizen and Greenpeace to the Alliance for Sustainable Communities and the Solar Energy Industries Association, argues that the current federal law requires EPA to regulate emissions of carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons from cars and trucks. If EPA fails to go along, or respond by April 20, they threaten to sue.

The petition seeks a new round of federal edicts on automobile design. The petitioners want EPA to mandate the production of cars and trucks that use less fuel - irrespective of whether these are the sorts of vehicles that consumers want. In particular, the petition calls for EPA to jack up federal fuel economy standards for cars and trucks. This would result in cars that are smaller and lighter - and therefore less safe. studies indicate that current federal fuel economy standards already increase the number of deaths from car crashes by as much as 4,000 per year, if not more. Dramatic increases in the federal standards, as called for in the petition, would increase this death toll even more.

An alternative measure the petitioners advocate is a sales mandate for cars powered by electric batteries, fuel cells, or "hybrid" systems that combine these technologies with traditional engines. In other words, they want EPA, rather than the market, to determine what powers the next car you drive. This approach to regulation has been tried before, with pitiful results. California sought to impose an electric vehicle sales mandate on automakers, but was forced to back off once it was clear that the technologies did not exist to meet consumer demands. Many of these technologies sound great, and one day they may be practical, but a federal mandate will not make it so.

The legal argument underlying the petition is that carbon dioxide and other greenhouse gases meet the statutory definition of "air pollutants" under the Clean Air Act because they "cause or contribute" to air pollution that could harm "public health or welfare." Most of these terms are broadly defined under the Clean Air Act, which gives the petitioners arguments some superficial plausibility. Yet even a casual review of the history and structure of the act makes clear that Congress did not seek to give EPA to regulate greenhouse gases on its own.

The primary aim of the Clean Air Act has always been to control local and regional air pollution, such as soot and smog. Through various statutory provisions, EPA sets national ambient air quality standards and directs state and local governments how the standard should be met. The aim is for air quality in each region of the country to meet the requisite standard. Greenhouse gases, however, are not local or regional "pollutants," and fears of global warming are not based upon local concentrations of these gases.

More importantly, a decision to regulate carbon dioxide would have a dramatic impact on all sectors of American life. As such it is the sort of decision which should be made by Congress, and Congress alone. The Constitution clearly vests all legislative power in the legislative branch, not in executive agencies or the courts. Unelected bureaucracies should not have the authority to regulate whatever alleged problem is placed in their sites. As the Supreme Court noted in 1988, "it is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress."

Congress has considered authorizing the regulation of greenhouse gases repeatedly, recognizing each time that such a step was unwarranted and unwise. When Congress enacted the 1990 Clean Air Act Amendments it adopted provisions encouraging "non-regulatory" approaches to greenhouse gas emissions but explicitly rejected a proposal to authorize regulatory measures on cars and trucks. Since then, Congress has gone on record repeatedly against greenhouse gas regulations.

The EPA is likely to oppose the environmentalists petition, if for no other reason that to protect its bureaucratic prerogatives. But one wonders how heartfelt such opposition will be. Senior agency officials clearly accept the petitioners' premises, and how often do we expect regulatory agencies to oppose initiatives that expand their authority. If the petition to regulate greenhouse gas emissions produces a lawsuit, this may be one court fight that EPA would be happy to lose.