A consolidated set of appeals to the federal courts on the EPA’s regulation of greenhouse gases has just been decided in favor of the EPA by the D.C. Circuit Court of Appeals. Here I include a few excerpts from the decision (dated June 26, 2012) to show why what the EPA is doing is absurd, and why, as a matter of law, it doesn’t matter.
First off: why considering CO2 to be a pollutant is absurd, and why it doesn’t matter. With citations omitted:
The genesis of this litigation came in 2007, when the Supreme Court held in Massachusetts v. EPA that greenhouse gases “unambiguous[ly] may be regulated as an “air pollutant” under the Clean Air Act (“CAA”). Squarely rejecting the contention — then advanced by EPA — that “greenhouse gases cannot be ‘air pollutants’ within the meaning of the Act,” the Court held that the CAA’s definition of “air pollutant” “embraces all airborne compounds of whatever stripe,” (emphasis added). [pp. 16-17]
See, to you and me, an air pollutant is something that doesn’t belong there. But the CAA is extremely broad in its definition of a pollutant. For starters, it includes just about anything that can be emitted into the atmosphere. So while calling CO2 a pollutant is absurd in the ordinary meaning of the word pollutant, the CAA doesn’t use the word’s ordinary meaning. Continuing:
Moreover, because the CAA requires EPA to establish motor-vehicle emission standards for “any air pollutant … which may reasonably be anticipated to endanger public health or welfare,” (emphasis added), the Court held that EPA had a “statutory obligation” to regulate harmful greenhouse gases. [p. 17]
This led to the EPA’s “Endangerment Finding”. Since the Supreme Court determined that greenhouse gases were “air pollutants” (I’m using scare quotes to indicate that the term “air pollutant” does not have its ordinary meaning), the ball was in EPA’s court to determine whether they may reasonably be anticipated to endanger public health or welfare.
The Endangerment Finding defined as a single “air pollutant” an “aggregrate group of six long-lived and directly-emitted greenhouse gases” that are “well mixed” together in the atmosphere and cause global climate change: carbon dioxide, methane, nitrous oxide, hydroflourocarbons, perflourocarbons, and sulfer sulfur hexafluoride. … EPA concluded that motor-vehicle emissions of these six well-mixed gases “contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare. [pp. 17-18]
The Court of Appeals illustrates their scientific illiteracy by misspelling two of the six chemical names they attempt to use. More important than that, though, is the next absurdity: in the CAA, there’s no consideration of possible benefits of greenhouse gases, nor a [corrected 6/27] balancing between the possible dangers and the cost of mitigating those dangers.
State and Industry Petitioners insist that because statutes should be interpreted to avoid absurd results, EPA should have considered at least the “absurd” consequences that would follow from an endangerment finding for greenhouse gases. Specifically: having made an endangerment finding, EPA will proceed to promulgate emission standards. Issuing those standards triggers regulation — under EPA’s PSD and Title V programs — of stationary sources that emit greenhouse gases at levels above longstanding statutory thresholds. Because greenhouse gases area emitted in much higher volumes than other air pollutants, hundreds of thousands of small stationary sources would exceed those thresholds. This would subject those sources to PSD and Title V permitting requirements despite what Petitioners claim was Congress’s clear intent that the requirements apply only to large industrial sources. Petitioners assert that even EPA believed such overbroad regulation to be an absurd result, which it attempted to rectify by adopting the Tailoring Rule to raise the statutory thresholds. [p. 26]
The Court of Appeals dismissed this logic, saying in effect that if Congress wants to write an absurd law, it is free to do so.
However “absurd” Petitioners consider this consequence, though, it is still irrelevant to the endangerment inquiry. That EPA adjusted the statutory thresholds to accommodate regulation of greenhouse gases emitted by stationary sources may indicate that the CAA is a regulatory scheme less-than-perfectly tailored to dealing with greenhouse gases. But the Supreme court has already held that EPA indeed wields the authority to regulate greenhouse gases under the CAA. The The plain language of the Act does not leave room for EPA to consider as part of the endangerment inquiry the stationary-source regulation triggered might be a later stage be characterized as “absurd”. [25-26]
Until there’s a reasonably intelligent scheme, approved by Congress and the Administration, for regulating greenhouse gases effectively and appropriately on a national and intenational level, the present absurd approach is mandated by law.