by Eli Kintisch
7 February 2011
Yes, said five justices on the U.S. Supreme Court in 2007, when they ruled that greenhouse gases qualified under the Clean Air Act’s definition of a “pollutant.” Under the Constitution, the Supreme Court is the final arbiter of Congress’s intent in passing legislation, so politicians on both sides of the aisle figured that issue was settled. Unless, that is, Congress were to amend the Clean Air Act to rule out certain gases from regulation.
As expected, the new political tide on climate change has brought a raft of legislative proposals to do just that. A key pair: a finalized bill by Senator John Barrasso (R-WY) and a “discussion draft” by the House of Representatives Energy and Commerce Committee Chair Fred Upton (R-I) and Senator Jim Inhofe (R-OK).
The lawmakers and their allies know the 2007 decision means Congress must pass legislation if it wants to force the U.S. Environmental Protection Agency (EPA) to stop its march toward regulating greenhouse gas emissions. That hasn’t stopped them from seeking to “clarify,” as Upton put it this week, that “the Clean Air Act was not written by Congress to address climate change.” It’s a common argument among critics of President Barack Obama’s EPA’s moves on climate.
Congress explicitly allowed for evolving atmospheric science in the Clean Air Act when it overhauled existing air quality law in 1970 and amended that bill subsequently. And discussion of the nascent science of climate change is part of the congressional record in the original version of the law and its updates. Still, the question of whether CO2 is pollution is now at the fore of the debate about whether to amend the act again.
The Clean Air Act named six known pollutants, including lead and soot. But it also set up a process called the “endangerment finding” that EPA would use to decide whether additional pollutants should be regulated under the act or adjust its standards for allowable pollution.