Jamming the Square Peg Through the Round Hole: EPA’s Options for Implementing Efficient Climate Change Regulation Under the Clean Air Act

Abstract

Hurricanes in New York City and record droughts scalding the American breadbasket--last year might go down in history as the year when the United States woke up to the fact that climate change is here, for real. Ask nearly any policy guru how to address the climate problem and she will tell you that a market-based approach is essential to reach emission targets efficiently. We know the problem. We know the solution. But with multiple interests tugging in different directions, political paralysis, and an American public addicted to consumption, getting from point A to point B is daunting, and the chances of Congress passing legislation anytime soon specifically targeted toward climate change, at least one with teeth, is near zero. The challenge then is to use the legal framework already in place to address the problem, even if that means “jamming a square peg through a round hole.” The 2007 Supreme Court decision Massachusetts v. EPA marked the beginning of a new frontier for domestic climate change regulation in the United States. The Court held green house gases (GHGs) are covered under the U.S. Clean Air Act (CAA), giving the U.S. Environmental Protection Agency (EPA) the authority to regulate climate change under the CAA. As with most new regulations, things have moved slowly since then. In the interim criticisms of the idea of regulating climate under the CAA have persisted. Few would argue that Congress’s intention in enacting the CAA was to address a global problem like climate change. Congress was addressing extreme local air pollution *1002 problems, like smog cover in Los Angeles, when it enacted the CAA. Even members of this Journal have commented on the inappropriateness of an unaltered application of the CAA to climate change. This comment noted that a strict reading of the CAA’s requirements would be unworkable as applied to GHGs, necessitating the adoption of the then proposed tailoring rule. Ideally, an enforceable global compact where all nations participate in a non-voluntary system would be initiated to address climate change. Congress, acknowledging the overwhelming scientific evidence in favor of climate change, would implement legislation specifically addressing the United State’s commitment to the international treaty. Things have not developed this way, and in all likelihood will not for some time. Even though the CAA is not an ideal structure for addressing climate change, it is the most feasible option currently available domestically for making serious progress in reducing GHG emissions. In light of the recent D.C. Circuit Court decision, Coalition for Responsible Regulation v. EPA, which approved the EPA’s tailoring rule, it is now appropriate to reexamine the CAA as applied to domestic regulation of climate change and weigh options available for market-based regulation of GHGs. This Comment argues that Responsible Regulation opens the door for the United States to gradually implement a national cap-and-trade system, which can eventually be incorporated into a global cap-and-trade system.