Bryan Olin Dozier/NurPhoto via AP
Climate change activists gather outside the Supreme Court in Washington on February 28, 2022, during arguments in the case of West Virginia v. Environmental Protection Agency.
On June 30, the Supreme Court issued its decision in West Virginia v. EPA, which limited the Environmental Protection Agency’s ability to use one section of the Clean Air Act, Section 111(d), to address carbon emissions. On July 28, seven state attorneys general wrote to EPA Administrator Michael Regan recommending that the EPA use another, more powerful section of the Clean Air Act to address the climate crisis.
The attorneys general said that the EPA should adopt National Ambient Air Quality Standards (NAAQS) for greenhouse gases. They pointed out that the NAAQS provision is an extremely powerful tool that has been used to address other priority pollutants, such as ozone, and that the arguments the Supreme Court made in the West Virginia case simply did not apply to NAAQS.
The letter received little attention, perhaps largely because it was sent the day after Sens. Joe Manchin (D-WV) and Chuck Schumer (D-NY) announced that they had made the deal that became the Inflation Reduction Act. The Inflation Reduction Act is a real accomplishment. But even the most optimistic modeling of its impact indicates it will only get us part of the way to President Biden’s goals of net-zero emissions by 2050.
The IRA will help reduce emissions to 40 percent below 2005 levels by 2030, largely through cleaner electric power generation, which currently causes 25 percent of total greenhouse gas emissions. And the EPA is working to ratchet down emissions from passenger cars and some other transportation categories (transportation generates 27 percent of emissions).
But that leaves 48 percent of emissions: 24 percent from industrial sources (e.g., cement and steel production), 13 percent from buildings (e.g., gas furnaces used for heating), and 11 percent from agriculture. The IRA does offer tax credits for energy-efficient buildings and carbon-capture techniques that could go into industrial production, as well as a “climate-smart agriculture” program that is a bit of a mixed bag. The wonky folks who have modeled the impact of the IRA, like the Rhodium Group, recognize that all of these nudges will have a fairly limited impact.
Methane regulation in the IRA involves real penalties but faces problems of design, though the EPA is designing its own methane rules that could be effective. Similarly, the 2020 law regulating hydrofluorocarbons will also chip away at emissions. But all of these good things put together won’t get us anywhere near net-zero emissions by 2050.
How, then, are we going to get to net zero? Count on Congress to act again? It took Congress 30 years to pass the IRA.
So if the United States seriously wants to fight the climate crisis, perhaps it’s worth seeing what the attorneys general of Oregon, Delaware, Minnesota, Iowa, Maine, Michigan, New Mexico, and Guam had to say.
The NAAQS provisions of the Clean Air Act are very clear: If a pollutant is a threat to public health and welfare, and if that pollutant comes from “numerous or diverse” sources (which is certainly true of greenhouse gases), the EPA is supposed to identify a concentration of that pollutant in the “ambient air” that is not to be exceeded, and states are responsible for ensuring they do not exceed that level. (If a state refuses to come up with a plan to achieve a NAAQS, it can lose federal transportation funding, and the EPA can step in and write its own plan for that state.) The EPA has used NAAQS successfully to fight pollutants like ozone, lead, and particulate matter.
The legislative history shows that Congress recognized that in NAAQS, it was giving the EPA a very powerful tool.
NAAQS for greenhouse gases make sense. The entire purpose of the fight against climate change is to prevent the concentration of greenhouse gases from reaching a certain level. To achieve the Paris Agreement’s least ambitious goal of preventing warming greater than two degrees Celsius, scientists say we need to keep the concentration of carbon dioxide below 450 parts per million. (Right now we are at about 415 ppm, and rising by two to three parts per year.) One option might be for the EPA to simply adopt a NAAQS that mirrors the Paris Agreement.
Although the language of the statute clearly authorizes NAAQS for GHGs, one may still ask, “But what about that Supreme Court case?” It’s important to understand that the Supreme Court’s holding in West Virginia was limited to one provision of the Clean Air Act, and the reasoning it applied to that provision does not apply to NAAQS.
The Court said that Section 111(d) was an “ancillary,” “gap-filler” provision that Congress could not have intended to give the EPA broad powers, such as the power to transform the electricity generation industry. But the NAAQS provisions, far from being “ancillary,” have been described by the Supreme Court as the “engine that drives” the Clean Air Act. The legislative history similarly shows that Congress recognized that in NAAQS, it was giving the EPA a very powerful tool. A report of the Senate Public Works Committee in 1970 said that NAAQS would require “major action throughout the Nation … many facilities will require major investments in new technology and new processes. Some facilities will need altered operating procedures or a change of fuels. Some facilities may be closed.”
Moreover, as the attorneys general noted, the Court itself distinguished NAAQS from 111(d), in its opinion in West Virginia. “It is one thing for Congress to authorize regulated sources to use [emissions] trading to comply with a preset cap, or a cap that must be based on some scientific, objective criterion, such as the NAAQS,” wrote Chief Justice Roberts (emphasis added). “It is quite another to simply authorize EPA to set the cap itself wherever the Agency sees fit,” as the Court concluded the EPA was using Section 111(d) to do in its Clean Power Plan.
Some might argue that it doesn’t matter what the statute says, or if the Court’s specific arguments in West Virginia apply to NAAQS; they’ll always find some way to strike the idea down. But there is some reason to believe that enough conservative justices are serious about respecting the words of a statute. In the 2020 Bostock case, Justice Gorsuch surprised many people by concluding that under the plain text of the Civil Rights Act, its antidiscrimination provisions applied to gay and transgender people. One environmental law professor, Ann Carlson of UCLA, took note, observing that the plain text of Section 108 of the Clean Air Act “seemingly allows or even requires establishing what is called a National Ambient Air Quality standard for greenhouse gases.” Carlson is now on Pete Buttigieg’s team, as the acting administrator of the National Highway Traffic Safety Administration.
The letter from the attorneys general rebutted a “practical” argument sometimes used against the application of NAAQS to GHGs: that GHGs are interstate and international pollutants that no one state can control. The Clean Air Act, they write, has a “good neighbor” provision that forces states to address the movement of air pollution across state boundaries that puts a state’s NAAQS at risk. The same could be done for a GHG standard, and the Supreme Court has even approved rules to this effect in the past. The Clean Air Act’s Section 179B addresses international pollutants, saying, “in effect, if a state’s plan to meet the NAAQS would otherwise be adequate, the state will not be held responsible if emissions from foreign countries prevent the State from complying with NAAQS,” according to the attorneys general.
Suppose the EPA adopted a NAAQS for carbon dioxide of 450 ppm. The EPA could calculate the emissions reductions the United States would have to make to do its part to keep below 450, and assign each state a “pollution budget” reflecting its fair share of emissions reductions. Some states have already established their own declining emissions budgets; every state could.
The environmental establishment has ignored the idea of NAAQS for GHGs for decades. Until the attorneys general spoke out, only a few organizations, notably the Center for Biological Diversity, had supported the idea. The establishment decided that industry-by-industry regulation under Section 111(d) was the way to go. But that was never going to do the job, because the EPA was never going to adopt 111(d) rules for dozens of industries. And now the Supreme Court has undermined the EPA’s ability to use 111(d).
The EPA recently wrote back to the AGs. Their letter wasn’t really a response; it was simply a laundry list of efforts already under way, which still get us only a fraction of the way there. The AGs set a bold road map for how to meet the country’s climate goals, one that more groups would do well to consider.
