Waxman-Markey Strips EPA of Clean Air Act Authority to Fight Global Warming

Waxman-Markey Strips EPA of Clean Air Act Authority to Fight Global Warming

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Effectiveness of the Clean Air Act

The history of the Clean Air Act has demonstrated its value in reducing air pollution and improving health and welfare in cost-effective ways. Its programs have reduced a wide variety of air pollutants — from nitrous oxides to volative organic compounds, from sulphur to pollutants causing the ozone hole — and have done so across a wide variety of sources, from stationary sources to motor vehicles.

The Clean Air Act’s regulations have also resulted in the development of cutting-edge pollution control technologies such as SO2 scrubbers and catalytic converters as industry responded creatively to the Environmental Protect Agency’s (EPA) mandate for clean air.

EPA Regulation of Greenhouse Gas Emissions

On April 24, 2009, the Administrator of the EPA issued a finding that greenhouse gases emitted into the atmosphere endanger the public health and welfare of current and future generations.1 The EPA also found that concentrations of greenhouse gases are at unprecedented levels compared to the recent and distant past and that these high atmospheric levels are the unambiguous result of human emissions, and are very likely the cause of the observed increase in average temperatures and other climatic changes.

These findings follow the Supreme Court’s ruling in Massachusetts v. EPA in 2007. In this ruling, the court held that, under the Clean Air Act, EPA must regulate greenhouse gas pollution if it finds such pollution endangers public health and welfare. The EPA’s endangerment finding puts it on a long overdue course to begin setting limits under the Clean Air Act on greenhouse gas pollution, thereby protecting citizens from the long list of harms associated with a warming earth.

Waxman-Markey Eliminates EPA’s Ability to Regulate Greenhouse Gases

Many concerns have been raised about the ability of the Waxman-Markey bill to reduce greenhouse gas emissions as quickly as necessary or to the level necessary to protect our climate. Yet, the Waxman-Markey bill would lock the U.S. into the new, flawed system it creates, taking away almost all of the EPA’s existing authority to reduce greenhouse gas pollution under the Clean Air Act.

Specifically, the Waxman-Markey bill prohibits any greenhouse gas, including CO2, from being listed as a “criteria pollutant”2 or a “hazardous air pollutant”3 on the basis of its effect on climate change. The bill does not permit greenhouse gases to trigger New Source Review,4 nor affect the granting of a permit to operate under Title V5 of the Clean Air Act.

The EPA is further prohibited from regulating greenhouse gas emissions as international air pollutants6 or setting technology-based standards for any capped sources7. What all of this language means is that if the Waxman-Markey bill passes, the EPA’s hands will be tied and it will not effectively be able to use the Clean Air Act to reduce global warming pollution.

Consequences of Elimination of EPA Authority

This policy choice to strip the EPA of authority to reduce greenhouse gas pollution has a number of negative implications; foremost among them is that, as currently constituted, the Waxman-Markey bill is likely to undermine investment in technology development. First, it undermines the certainty of regulation associated with the Clean Air Act, which has been a significant technology driver in the past. Second, it allows use of offsets until approximately 2030, putting off any need for immediate investment in reducing greenhouse gas emissions.

If industry does not begin to invest in new technology now, we are likely to find ourselves approaching 2030 with no hope of achieving needed reductions. Further, the Waxman-Markey bill lacks significant penalties for corporations that violate it, in contrast to the Clean Air Act. As a result, regulated entities will be less driven to find solutions or may simply find it cheaper to pay penalties than to invest in new technologies.

A second major drawback of eliminating the EPA’s ability to regulate greenhouse gas emissions is that, if the market system the Waxman-Markey bill puts in place proves unworkable, or is delayed by a series of problems such as has been experienced by Europe’s greenhouse gas trading system, the EPA will not be allowed to step into the breach. Similarly, if climatic conditions change, and significantly greater reductions are necessary in a shorter amount of time, it will be difficult to revise the Waxman-Markey bill to the degree necessary or as quickly as necessary to protect our climate.

Given the difficulty in passing a strong cap and trade bill despite our current Democratic majority, a supportive president, and a mandate for change from the public, it must be acknowledged that fixing a failed bill, let alone requiring more stringent future reductions, may be a pipe dream. The authors themselves have stated that that passage of this bill, now, is critical, because the chances of doing so in the future are low.

If history is a guide, the frustrating inability to increase fuel efficiency standards for vehicles for more than thirty years, despite the acknowledged need to do so, should caution Congress not to lock us into a potentially failed system or take away the tools necessary to make critical mid-course adjustments. In the fuel economy example, a single important industry opposed to improvements was able to grind the wheels of progress to a standstill. In the case of climate legislation, with every major industry subject to the Waxman-Markey standards, any future improvement of the bill could be a long-shot indeed.

Finally, removing the EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act means that the EPA will not be able to put in place any early action measures. This is a missed opportunity to put quick and relatively cheap requirements in place to immediately reduce greenhouse gas emissions.

1 74 Fed. Reg. 18,886 (Apr. 24, 2009)
2 HR 2454, §831.
3 HR 2454, §833.
4 HR 2454, §834.
5 HR 2454, §835.
6 HR 2454, §832.
7 HR 2454, §811.