[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
STRENGTHS AND WEAKNESSES OF
REGULATING GREENHOUSE GAS EMISSIONS USING EXISTING CLEAN AIR ACT
AUTHORITIES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENERGY AND AIR QUALITY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
APRIL 10, 2008
__________
Serial No. 110-105
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
U.S. GOVERNMENT PRINTING OFFICE
51-574 WASHINGTON : 2008
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON ENERGY AND COMMERCE
JOHN D. DINGELL, Michigan, Chairman
HENRY A. WAXMAN, California JOE BARTON, Texas
EDWARD J. MARKEY, Massachusetts Ranking Member
RICK BOUCHER, Virginia RALPH M. HALL, Texas
EDOLPHUS TOWNS, New York J. DENNIS HASTERT, Illinois
FRANK PALLONE, Jr., New Jersey FRED UPTON, Michigan
BART GORDON, Tennessee CLIFF STEARNS, Florida
BOBBY L. RUSH, Illinois NATHAN DEAL, Georgia
ANNA G. ESHOO, California ED WHITFIELD, Kentucky
BART STUPAK, Michigan BARBARA CUBIN, Wyoming
ELIOT L. ENGEL, New York JOHN SHIMKUS, Illinois
ALBERT R. WYNN, Maryland HEATHER WILSON, New Mexico
GENE GREEN, Texas JOHN B. SHADEGG, Arizona
DIANA DeGETTE, Colorado CHARLES W. ``CHIP'' PICKERING,
Vice Chairman Mississippi
LOIS CAPPS, California VITO FOSSELLA, New York
MIKE DOYLE, Pennsylvania STEVE BUYER, Indiana
JANE HARMAN, California GEORGE RADANOVICH, California
TOM ALLEN, Maine JOSEPH R. PITTS, Pennsylvania
JAN SCHAKOWSKY, Illinois MARY BONO, California
HILDA L. SOLIS, California GREG WALDEN, Oregon
CHARLES A. GONZALEZ, Texas LEE TERRY, Nebraska
JAY INSLEE, Washington MIKE FERGUSON, New Jersey
TAMMY BALDWIN, Wisconsin MIKE ROGERS, Michigan
MIKE ROSS, Arkansas SUE WILKINS MYRICK, North Carolina
DARLENE HOOLEY, Oregon JOHN SULLIVAN, Oklahoma
ANTHONY D. WEINER, New York TIM MURPHY, Pennsylvania
JIM MATHESON, Utah MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina MARSHA BLACKBURN, Tennessee
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
______
Professional Staff
Dennis B. Fitzgibbons, Chief of Staff
Gregg A. Rothschild, Chief Counsel
Sharon E. Davis, Chief Clerk
Bud Albright, Minority Staff Director
(ii)
Subcommittee on Energy and Air Quality
RICK BOUCHER, Virginia, Chairman
G.K. BUTTERFIELD, North Carolina, FRED UPTON, Michigan
Vice Chairman Ranking Member
CHARLIE MELANCON, Louisiana RALPH M. HALL, Texas
JOHN BARROW, Georgia ED WHITFIELD, Kentucky
HENRY A. WAXMAN, California JOHN SHIMKUS, Illinois
EDWARD J. MARKEY, Massachusetts JOHN B. SHADEGG, Arizona
ALBERT R. WYNN, Maryland CHARLES W. ``CHIP'' PICKERING,
MIKE DOYLE, Pennsylvania Mississippi
JANE HARMAN, California ROY BLUNT, Missouri
TOM ALLEN, Maine STEVE BUYER, Indiana
CHARLES A. GONZALEZ, Texas MARY BONO, California
JAY INSLEE, Washington GREG WALDEN, Oregon
TAMMY BALDWIN, Wisconsin MIKE ROGERS, Michigan
MIKE ROSS, Arkansas SUE WILKINS MYRICK, North Carolina
DARLENE HOOLEY, Oregon JOHN SULLIVAN, Oklahoma
ANTHONY D. WEINER, New York MICHAEL C. BURGESS, Texas
JIM MATHESON, Utah JOE BARTON, Texas (ex officio)
JOHN D. DINGELL, Michigan (ex
officio)
------
Professional Staff
Sue D. Sheridan, Chief Counsel
John W. Jimison, Counsel
Rachel Bleshman, Legislative Clerk
David McCarthy, Minority Counsel
C O N T E N T S
----------
Page
Hon. G.K. Butterfield, a Representative in Congress from the
State of North Carolina, opening statement..................... 1
Prepared statement........................................... 2
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 3
Hon. Jane Harman, a Representative in Congress from the State of
California, opening statement.................................. 4
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 5
Hon. Tammy Baldwin, a Representative in Congress from the State
of Wisconsin, opening statement................................ 5
Prepared statement........................................... 6
Hon. Marsha Blackburn, a Representative in Congress from the
State of Tennessee, opening statement.......................... 7
Hon. John D. Dingell, a Representative in Congress from the State
of Michigan, opening statement................................. 7
Prepared statement........................................... 9
Hon. Joe Barton, a Representative in Congress from the State of
Texas, opening statement....................................... 10
Hon. Jay Inslee, a Representative in Congress from the State of
Washington, opening statement.................................. 12
Hon. Edward J. Markey, a Representative in Congress from the
Commonwealth of Massachusetts, opening statement............... 13
Prepared statement........................................... 14
Witnesses
Robert J. Meyers, Principal Deputy Assistant Administrator,
Office for Air and Radiation, Environmental Protection Agency.. 16
Prepared statement........................................... 18
Answers to submitted questions............................... 132
David Doniger, Policy Director, Climate Center, Natural Resources
Defense Council................................................ 57
Prepared statement........................................... 60
Answers to submitted questions............................... 130
Raymond Ludwiszewski, Partner, Gibson, Dunn & Crutcher LLP....... 82
Prepared statement........................................... 83
Lisa Heinzerling, Professor of Law, Georgetown University Law
Center......................................................... 87
Prepared statement........................................... 88
Answers to submitted questions............................... 168
Peter Glaser, Partner, Troutman Sanders LLP...................... 93
Prepared statement........................................... 96
Submitted Material
Hon. Henry A. Waxman, letter of March 12, 2008, to U.S.
Environmental Protection Agency................................ 120
STRENGTHS AND WEAKNESSES OF REGULATING GREENHOUSE GAS EMISSIONS USING
EXISTING CLEAN AIR ACT AUTHORITIES
----------
THURSDAY, APRIL 10, 2008
House of Representatives,
Subcommittee on Energy and Air Quality,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:09 a.m., in
room 2123 of the Rayburn House Office Building, Hon. G.K.
Butterfield (vice chairman of the subcommittee) presiding.
Members present: Representatives Butterfield, Melancon,
Barrow, Waxman, Markey, Harman, Gonzalez, Inslee, Baldwin,
Matheson, Dingell (ex officio), Upton, Whitfield, Shimkus,
Walden, Rogers, Blackburn, Burgess, and Barton (ex officio).
Staff present: Lorie Schmidt, Laura Vaught, Sue Sheridan,
Bruce Harris, Chris Treanor, Alex Haurek, Rachel Bleshman,
David McCarthy, and Garrett Golding.
OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. Butterfield. The Committee will come to order.
Let me start by saying good morning to all of you and to
welcome our panelists and thank all of you for coming today. I
would like to also express my appreciation to Chairman Boucher,
who is not here at this moment but will be here around 11:00
this morning. I want to thank the chairman in his absence for
all that he does. I also want to thank the chairman of the full
committee, Mr. Dingell, for the thoughtful and methodical way
that both of them have approached the development of climate
change legislation.
We want to be clear here today that we share the same sense
of urgency on climate change as every other member of this
committee, but we must continue to approach this as
thoughtfully as possible. We have serious concerns about how
low-income communities, for example, will be impacted by a
climate change bill that is not carefully crafted. But having
these hearings to discuss the many issues we must consider will
certainly pay great dividends.
The Energy and Air Quality Subcommittee convenes today to
discuss the issue of the Environmental Protection Agency
regulation of greenhouse gases. This authority was granted by
the Supreme Court's recent ruling on Massachusetts v. EPA in
the early part of last year that defined carbon dioxide as a
pollutant under the Clean Air Act and therefore eligible, I
repeat, eligible to be regulated under that statute. Based upon
that landmark ruling, it could be possible for the EPA to take
action to regulate greenhouse gas emissions before this
subcommittee or even Congress can construct a roadmap for
regulating the gases that contribute to global warming.
And so the issue ultimately becomes one of action or
inaction, because there are some that want to delay this
subcommittee from moving forward with climate change
legislation such as cap and trade. However, the Massachusetts
v. EPA decision should serve as a wakeup call to every member
of this body and to the public at large that delay is no longer
a viable option, and so I would like to welcome all of our
witnesses today and begin by introducing the only witness that
will appear on the first panel, Mr. Bob Meyers, who is the
Principal Deputy Assistant Administrator of Air and Radiation
in the Environmental Protection Agency, and so I thank all of
you for coming.
[The prepared statement of Mr. Butterfield follows:]
Statement of Hon. G.K. Butterfield
Good morning. Welcome to all of our panelists and thank you
for coming to testify today. I'd like to start by expressing my
appreciation to Chairman Boucher and Chairman Dingell for the
thoughtful and methodical way they have approached the
development of climate change legislation. I want to be clear,
I share the same sense of urgency on climate change as every
other Member of this Committee, but we must continue to
approach this as thoughtfully as possible. I have serious
concerns about how low-income communities will be impacted by a
climate change bill that is not carefully crafted, but having
these hearings to discuss the many issues we must consider will
pay great dividends.
The Energy and Air Quality Subcommittee convenes today to
discuss the issue of the Environmental Protection Agency
regulation of greenhouse gases. This authority was granted by
the Supreme Court's recent ruling on Massachusetts vs. EPA in
early 2007 that defined carbon dioxide as a pollutant under the
Clean Air Act, and therefore eligible to be regulated under
that statute. Based upon that landmark ruling, it could be
possible for the EPA to take action to regulate greenhouse gas
emissions before this subcommittee, or Congress, can construct
a roadmap for regulating the gases that contribute to global
warming. And so the issue ultimately becomes one of action, or
inaction, because there are some that want to delay this
subcommittee from moving forward with climate change
legislation, such as cap and trade. However, the Massachusetts
vs. EPA ruling should serve as a wake-up call to every Member
of Congress and to the public at large, that delay is no longer
a viable option.
I'd like to welcome all of our witnesses and begin by
introducing the only witness from our first panel, Mr. Bob
Meyers, Principal Deputy Assistant Administrator for Air and
Radiation in the Environmental Protection Agency. Thank you for
coming.
We also have four witnesses testifying for the second
panel, starting off with Mr. David Doniger with the Natural
Resources Defense Council, Raymond Ludwiszewski, partner at
Gibson, Dunn, and Crutcher, Ms. Lisa Heinzerling, Professor of
Law at Georgetown University, and Mr. Paul Glaser, a partner at
Troutman Sanders LLP here in Washington, with a background in
environmental law. Again, I appreciate you all for providing
such a diverse array of knowledge and experience to assist this
subcommittee to understand how best to move forward. Thank you.
----------
Mr. Butterfield. At this time we will have opening
statements from the members if they choose to make opening
statements. I guess we will start with the ranking member of
the subcommittee, Mr. Upton.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Well, thank you, and I want to thank our
Chairman Boucher for holding this important hearing today on
the strengths and weaknesses of regulating greenhouse gas
emissions using existing Clean Air Act authorities.
The way I see it, we will mostly be looking at the
weaknesses of the Clean Air Act as a means to regulate
greenhouse gas emissions. Now, some members of this committee
are perhaps happy with the U.S. Supreme Court decision of
Massachusetts v. EPA. However, I must say that many of us are
not. But as the committee of jurisdiction, I think that we all
know that the EPA and the Clean Air Act are not necessarily the
most effective means to regulate greenhouse gas emissions.
As I have said a number of times, yes, I do support
reducing greenhouse gas emissions, and if there was a way to
cut emissions as part of a global agreement that includes India
and China and without harming our economy or domestic jobs,
certainly I would like to see it. But regardless of the path
that this Congress takes to deal with the global issue of
climate change, we must indeed correct Massachusetts v. EPA.
Our economy is going through a very rough patch and
certainly coming from Michigan, I know firsthand how difficult
things are for folks at home. Rising energy prices only
exacerbate the economic problems that we are facing, and by
law, the EPA is prevented from taking economic consideration
into account. We need to address climate change but we must
take a responsible, pragmatic approach that does not further
depress our economy and cost our country jobs.
The unfortunate reality is that if we leave this task to
the EPA, the consequences will be severe. Gas prices will
skyrocket. Electricity costs will spike. Jobs will rush
overseas and the environment probably won't be any better off.
The Clean Air Act was not designed to and does not properly
equip the EPA to deal with the global environmental issue. The
air pollution in southern California that puts them in
nonattainment with EPA regs does not impact southwest Michigan.
We can fix our air pollution regardless of what they do. The
Clean Air Act works fine for cleaning up the air in specific
geographical areas, but with CO2, there is no
environmental distinction between CO2 emitted in
southwest Michigan and the CO2 emitted in southwest
Asia or anywhere else in the world. This is an issue that must
be examined through a global spectrum in search of global
solutions.
The communities in my district are working hard to achieve
attainment under the Clean Air Act and we can test the air to
see exactly how many parts per million we have of criteria
pollutants and we can address those sources directly, but with
CO2, Michigan's reductions and the U.S. reductions
are lost in the global mix. To make a concerted effort to
achieve real results, all members of the world community must
be actively involved. The domestic response under inflexible
EPA command and control regs does not help and will not help
the environment, will not compel or require other countries to
act and will not even have a negligible impact on global levels
of greenhouse gases. If the goal is to improve human health and
welfare, EPA regs under the Clean Air Act will not achieve that
goal. There are substantial differences between CO2
and pollutants that the Clean Air Act was intended to regulate.
From the standpoint of both sound science and health risk,
CO2 does not belong in the same category with carbon
monoxide, chlorofluorocarbons, lead, nitrogen oxides, ozone,
particulate matter and sulfur dioxide. They simply are not the
same.
It is one thing to pay lip service to an issue and it is
another to actually pursue policies that we all know will not
work but we do have a unique opportunity to make a difference
in cutting greenhouse gas emissions at the global level. Cap
and trade or other congressionally mandated climate change
schemes without reversing Massachusetts v. EPA could indeed be
a real disaster.
I look forward to the testimony today and yield back the
balance of my time.
Mr. Butterfield. The gentleman yields back. Thank you.
At this time the chair recognizes the gentleman from
Georgia, Mr. Barrow.
Mr. Barrow. I thank the chairman. I will waive.
Mr. Butterfield. The gentleman from California is
recognized, Mr. Waxman.
Mr. Waxman. Mr. Chairman, I will waive.
Mr. Butterfield. The gentlelady from California.
OPENING STATEMENT OF HON. JANE HARMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Harman. Thank you, Mr. Chairman. I thank you for
holding the hearing.
It is discouraging enough that in the year since the
Supreme Court's Massachusetts v. EPA decision, the
Administration has dragged its heels on regulating greenhouse
gas emissions. But even more troubling is that EPA has also
denied States like Mr. Waxman's and my State of California our
right to act where the EPA in violation of the law refuses.
EPA's denial of California's waiver under the Clean Air Act is
tantamount to taking the ball and going home. EPA has no
national tailpipe emissions plan. It has written no
groundbreaking standards to defend the first denial of a waiver
in the history of the Clean Air Act, in the history of the
Clean Air Act. If I can't play, EPA has told California, then
neither can you.
But canceling the game isn't EPA's call, so says the
Supreme Court. And legal arguments aside, the EPA's dereliction
of its authority is just bad policy. The Energy Independence
and Security Act showed that state preemption is a carrot that
can bring industries to the legislative bargaining table. That
is how, by the way, Mr. Upton and I negotiated strong lighting
efficiency language to our bill. This committee will depend on
industry cooperation to write successful climate change
legislation, and it seems to me that California's foresight on
cap and trade and vehicle emissions are sticks the Federal
Government can use to drive consensus on a good climate policy.
Thank you, Mr. Chairman. I yield back.
Mr. Butterfield. I thank the gentlelady.
The chair recognizes--I forgot what State you are from.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. Well, just remember coal, Mr. Chairman, and
you will know that it is in the coal capital of the country,
the only coal basin, and I know folks on this committee know
that quite well.
I used to think that this was the Clean Air Act but times
have changed. Massachusetts v. the EPA is now the new Clean Air
Act. I am glad you are here today, Bob. I want to welcome you.
I think this ruling does what many of us continue to be
concerned about, judicial activism in the legislation, and what
this will allow the proponents of global climate change to do
is use the regulatory venue to increase costs on the average
citizen without having the accountability of casting the votes
to raise those costs themselves. Now, we continue to have
numerous debates on climate change, as we should. Climate
change is going to incur great costs on our country. We ought
to at least have guts enough to pay for those with an up or
down vote on the taxes that they will incur. At least Chairman
Dingell has proposed a carbon tax, which is the only
intellectually honest way to move forward on global climate
change. Let us tax the CO2 emissions, let us put
that money into an account and let us use that money to start
addressing how we are going to comply with all these
international agreements. So I commend Chairman Dingell for
that proposal, and I wish he would use his time in office to
push that so that we can have real accountability because only
through the legislative venue, as was stated by my ranking
member, will the economic aspect of this debate be addressed.
EPA will not address the economic dislocations caused by their
compliance and their move should they decide to do so on global
climate change.
I will end with this part of the opening statement. It is
my understanding that EPA has authority to regulate greenhouse
gases including carbon dioxide and that it must explicitly
ground his reason for regulatory action or inaction. I would
still think commonsense can prevail and we would move to
inaction versus action, and I yield back the balance of my
time.
Mr. Butterfield. I thank the gentleman.
At this time the chair recognizes the gentleman from Texas,
Mr. Gonzalez.
Mr. Gonzalez. I waive my opening statement.
Mr. Butterfield. The gentleman waives. Would you like to
add that to your other time?
Mr. Gonzalez. Yes.
Mr. Butterfield. The gentlelady from Wisconsin, Ms.
Baldwin.
OPENING STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WISCONSIN
Ms. Baldwin. Thank you, Mr. Chairman. I am going to submit
most of my opening statement for the record but I do want to
appreciate the fact that we are holding this hearing today
because for years scientists and environmentalists in the
international community and our very own constituents have been
calling on the United States to be a leader in addressing
climate change, and as we well know, for most of his
administration President Bush has really refused to address
this issue, let alone acknowledge that climate change was
occurring, and it was really only just 2 years ago, in the
State of the Union address, that President Bush first told the
Nation that global warming must be taken seriously.
I view this set of hearings that we have been having, this
one included, as our opportunity to prepare to bring forth, I
hope, a bold set of programs for the United States to begin
taking a leadership role, and I appreciate the opportunity to
look more deeply into the EPA's role in all that today.
I would submit the rest of my statement for the record.
Thank you.
[The prepared statement of Ms. Baldwin follows:]
Statement of Hon. Tammy Baldwin
Thank you Mr. Chairman. I appreciate you holding this
hearing today.
For years, scientists, environmentalists, the international
community, and our very own constituents have called on the
United States to be a leader in addressing climate change. And,
as we well know, for most of his administration, President Bush
has refused to address the issue, let alone acknowledge that it
is occurring. It was just 2 years ago, in President Bush's
State of the Union, that he first told the Nation that global
warming must be taken seriously.
Yet, even with President Bush's one-line snippit in his
address to the Nation in 2007 (and the few lines of attention
the issue received in 2008), his Administration fails to
demonstrate a commitment to this issue. And the EPA has
certainly been one of the major roadblocks. This Agency not
only has refused to use its authority to regulate greenhouse
gas emissions, but for years even denied that it had the
authority under the Clean Air Act.
However, what we know is that the Clean Air Act was
designed to protect human health and the environment from
emissions that pollute our air. It is a critical instrument in
reducing air pollutants from stationary and mobile sources.
And, although it may not be the best way to regulate greenhouse
gases, it certainly can be used.
Fortunately, last April the Supreme Court agreed, and in a
landmark decision ruled that EPA has the authority to regulate
emissions under the Clean Air Act.
Yet, even with the knowledge and legal authority to act on
this critical issue of our day, EPA continues to delay its
action. It has been more than a year since the Supreme Court
decision and EPA seems to still be waffling. Now it may be true
that Congress is better equipped than EPA to find an effective
path for regulating greenhouse gases. After all, the Clean Air
Act was designed to handle regional pollutants, not global
pollutants. But, at the same time, the Clean Air Act also was
left open--to address specific air pollutants known at the time
of enactment and those that may emerge from future science.
As such, it is time for us to examine whether there are
strengths or weaknesses to regulation under the Clean Air Act.
And, I believe part of the answer depends on the details
encapsulated in EPA's proposed regulations.
I am hopeful that today's hearing will shine some light on
how EPA believes the regulations can be most effective--by
explaining what sections of the Clean Air Act might provide the
authority for regulating greenhouse gases, by detailing the
action that could trigger EPA's regulation, and by examining
the types of sources that can be regulated under their
authority. And through this information, I hope to determine
whether EPA's action will be enough to address climate change
in a bold and effective manner.
Thank you Mr. Chairman. I look forward to hearing from the
witnesses.
----------
Mr. Butterfield. I thank the gentlelady.
At this time the chair recognizes the gentlelady from
Tennessee, Ms. Blackburn.
OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TENNESSEE
Ms. Blackburn. Thank you, Mr. Chairman. I do thank you for
holding the hearing today and I want to thank all of our
witnesses that are going to come before us and talk about the
impact of regulating CO2 emissions through the Clean
Air Act. Just for the purpose of debate, let us assume that
global warming is happening and that CO2 may
contribute to public health dangers as predicated by the IPCC,
the EPA and the CDC. New climate change policies will still not
prevent these dangers, and in many cases will have the
potential to make them worse, and in many cases the cost, as we
have heard several times this morning, that cost is going to be
borne by consumers, decreasing the citizens' ability to use
their own resources to adapt to climate change. If EPA finds an
endangerment finding for CO2 under Title I of the
Clean Air Act, practically every business and large facility
will be subject to heavy regulations, permitting procedures and
control technology requirements and any new facility would need
to obtain an environmental permit before it could be built.
Even if CO2 causes global warming, cutting emissions
through costly carbon reductions and regulations under the
Clean Air Act will make very little difference for the climate
and for society. Other nations, such as China and India, are
not going to restrict their development, and, if we assume that
global warming is a global warming, our actions will be
negligible due to other noncompliance nations and their
CO2 output. EPA requirements will not change that
result.
Mr. Chairman, there are no short-term fixes to this
unconfirmed or undefined problem. It is our responsibility to
take reasonable actions to protect the environment, but closing
coal plants and imposing massive energy costs on consumers is
possibly not the best way to go. New EPA regulations will only
make Americans end up with less money in their pockets. It will
make them more reliant on foreign energy sources and will have
negligible effect on global environmental improvement.
Thank you, and I yield back.
Mr. Butterfield. The gentlelady yields back. Thank you very
much.
At this time the chair is pleased to recognize the
distinguished chairman of the full committee, Mr. Dingell, for
such time as he may consume, not to exceed 5 minutes.
Mr. Dingell. Mr. Chairman, I thank you for your courtesy.
Mr. Butterfield. But extensions are possible for the
chairman.
OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Dingell. I thank you, Mr. Chairman, for your
recognition.
Mr. Chairman, the Committee is meeting today to address a
most important question and one which is not understood. We are
also looking at the possibility of a glorious mess being
visited upon this country. The questions before us and
questions that are going to be considered today are what
greenhouse gas regulations can we expect if the Congress fails
to pass comprehensive climate change legislation, and we need
to understand that that is something at which we are looking
very directly.
In previous meetings and hearings of this subcommittee,
there were members on both sides of the aisle who seemed to
assume that if we fail to enact comprehensive climate change
legislation, greenhouse gases will go unregulated, at least at
the Federal level. Not so. Today's hearing is going to cause us
to ask if this is a false assumption, and I believe it is. In
last year's Supreme Court decision in Massachusetts v. EPA, the
court stated that it believed that greenhouse gases are air
pollutants under the Clean Air Act. This is not what was
intended by the Congress and by those of who wrote that
legislation. Nonetheless, that is the law of the land, and it
is something with which we are going to have to live. As a
result of this decision, it is clear that under the Clean Air
Act the Environmental Protection Agency can regulate greenhouse
gases from both stationary and mobile sources. Even if the next
Administration does not want to issue such regulations,
environmental groups and perhaps some of those who will be
witnesses before us today would undoubtedly go to court to
force EPA to act.
I urge my colleagues to listen very closely to the types of
greenhouse gas regulations that EPA could impose under its
existing authority and to which it will be driven by the
potential for lawsuits to compel that kind of action. I ask my
colleagues and everybody else to ask yourself whether they are
likely to impose greater hardships on U.S. industry than would
be created by carefully crafted legislation that achieves the
same or greater greenhouse gas reductions, and I would point
out that this can be done in a more expeditious fashion by
careful consideration of this matter by the Congress.
On the mobile source side, I have repeatedly expressed my
concern that we have multiple agencies with regulatory
authorities to limit greenhouse gas emissions from motor
vehicles, and I want to stress again, we are not talking about
just having these kinds of regulations imposed upon the
automobile industry or upon transportation. It is going to
affect potentially every industry and every emitter and every
person in this country. The National Highway Traffic Safety
Administration, NHTSA, must issue CAFE fuel efficiency
standards based on the energy bill we enacted last December.
EPA also has the authority under Title II of the Clean Air Act
to impose additional limits that may differ from CAFE. This is
only a part of the wonderful complexity into which this nation
is being thrust. California and other States are also trying to
regulate greenhouse gas emissions from motor vehicles, again,
more new, wonderful, fresh complications and complexity.
EPA also has the authority to regulate greenhouse gases
from stationary sources such as power plants and industrial
facilities. Understand that these same regulations are not only
going to affect those stationary sources but also mobile
sources. So we are beginning to look at a wonderfully complex
world which has the potential for shutting down or slowing down
virtually all industry and all economic activity and growth.
Now I ask my friends here to think about whether State
implementation plans, New Source Review permitting, and source-
specific performance standards are the best way to regulate
greenhouse gas emissions. There seems to be a developing
consensus that what is needed is a cap-and-trade program by
this Nation to do what other countries in Europe and elsewhere
are doing to see to it that this matter is addressed in a
comprehensive, exhaustive, thoughtful, and intelligent way, but
I do not see that coming from the situation if we rely upon
existing law, and that is something upon which I think we had
better focus very carefully.
Mr. Chairman, I believe that a cap-and-trade program should
be the cornerstone of a comprehensive climate change program.
EPA may not have the authority to adopt an economy-wide cap-
and-trade program under the existing Clean Air Act, and if it
tries to do so, it is not improbable that we will have a fine
array of lawsuits to bless us all with huge amounts of
litigation. Now, I am certain that the legal profession will
enjoy this mightily and I am satisfied that this will be a full
employment situation for lawyers, of whom I happen to be one,
and maybe if I leave the Congress I will return to the practice
of law so that I can enjoy this kind of luxurious emolument for
creating complexity for our society and a significant downturn
in economic activity.
I will observe that if these events occur as I fear, or
some of them, that EPA will have to make decisions such as who
gets how many allowances and other things that are inherently
political decisions that should be made by the Congress, and I
ask everybody to think about whether we want EPA to make those
decisions and whether EPA wants to do so, because I have a
feeling that if they try to do so, they will probably get
ridden out of this town on a rail and perhaps be tarred and
feathered or wind up on the end of a rope.
Now, having said these things, these are matters that we
must explore this morning and finally begin to address the
question about what we are going to do, because as a matter of
national policy, it seems to me to be insane that we would be
talking about leaving this kind of judgment, which everybody
tells us has to be addressed with great immediacy, to a long
and complex process of regulatory action, litigation upon
litigation, and a lack of any kind of speedy resolution to the
concerns we have about the issue of global warming. Structuring
a comprehensive climate change program is a responsibility for
the Congress. It is more so a responsibility for the Congress
because of the complexity of it and the fact that there is
absolutely no certainty of what, when, or how these matters
will be resolved by the process that would take place under the
existing law. We have the State Implementation Plan, the New
Source Review provisions which can be applied in two different
ways, and I would call upon all to observe that this has the
rich potential for as many as over 100 different rulemakings
and rulemakers to cause a fine economic mess and a splendid
manufacturing and industrial shutdown.
Mr. Chairman, I thank you for your kindness in recognizing
me.
[The prepared statement of Mr. Dingell follows:]
Statement of Hon. John D. Dingell
The Subcommittee is meeting today to address a most
important question: What greenhouse gas regulations can we
expect if Congress fails to pass comprehensive climate change
legislation?
In previous Subcommittee hearings, there were Members on
both sides of the aisle who seemed to assume that if we fail to
enact comprehensive climate change legislation, greenhouse
gases will go unregulated--at least at the Federal level.
Today's hearing will cause us to ask if this is a false
assumption.
In last year's Supreme Court decision in Massachusetts v.
EPA, the Court stated that it believed that greenhouse gases
are ``air pollutants'' under the Clean Air Act. This is not
what some of us intended, but it is the law of the land and
must be followed. As a result of this decision, it is clear
that under the Clean Air Act, the Environmental Protection
Agency (EPA) can regulate greenhouse gases from both stationary
and mobile sources. Even if the next Administration did not
want to issue such regulations, environmental groups, perhaps
even one or two of today's witnesses would undoubtedly go to
Court to force EPA to act.
I urge my colleagues to listen closely to the types of
greenhouse gas regulations that EPA could impose under its
existing authority. Ask yourself whether they are likely to
impose greater hardship on U.S. industry than would carefully
crafted legislation that achieves the same or greater
greenhouse gas reductions.
On the mobile source side, I have repeatedly expressed my
concern that we have multiple agencies with regulatory
authority to limit greenhouse gas emissions from motor
vehicles. The National Highway Traffic Safety Administration
(NHTSA) must issue CAFE fuel efficiency standards based on the
Energy bill that we enacted in December. EPA also has authority
under Title II of the Clean Air Act to impose additional limits
that may differ from CAFE. California and other States are also
trying to regulate greenhouse gas emissions from motor
vehicles.
EPA also has authority to regulate greenhouse gases from
stationary sources such as power plants and industrial
facilities. Think about whether state implementation plans, new
source review permitting, and source-specific performance
standards are the best way to regulate greenhouse gas
emissions.
I believe that a cap-and-trade program should be the
cornerstone of a comprehensive climate change program. EPA may
not have authority to adopt an economy-wide cap-and-trade
program under the existing Clean Air Act. If it does, EPA will
have to make decisions--such as who gets how many allowances--
that are inherently political decisions that should be made by
an elected and accountable Congress.
Structuring a comprehensive climate change program is our
responsibility. It should not fall to EPA by default.
----------
Mr. Butterfield. I thank the chairman for his opening
statement.
At this time the chair is pleased to recognize the
distinguished ranking member of the full committee, the
gentleman from Texas, Mr. Barton.
OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Barton. Thank you, Mr. Chairman.
I want to commend Subcommittee Chairman Boucher and Full
Committee Chairman Dingell for holding this hearing. I want to
welcome our first witness, Bob Meyers. He used to be a staff
member of the committee. We are glad to have you back. I think
this is one of the more important hearings that we are going to
have in this Congress on the issue of climate change and global
warming.
The Supreme Court decision in Massachusetts v. EPA, in my
opinion, was wrong. I was a member of this committee in 1990
and 1991 when we last addressed the issue of air quality and
amended the Clean Air Act. It wasn't an oversight that we
didn't list carbon dioxide as a pollutant or, for that matter,
any of the other greenhouse gases. We didn't list them because
they are not pollutants in the sense of health issues that we
regulate under the Clean Air Act, so I was disappointed and
surprised when the Supreme Court ruled like they did. My basic
understanding of the Clean Air Act is that it is designed to
protect the quality of the air we breathe. It is not to
regulate what we exhale, and we all know, when we have
respiration, we create carbon dioxide, so each and every person
in this room is a mobile point source polluter, I guess, under
one definition of the Clean Air Act. There is a big difference
between CO2 and CO, which is carbon monoxide, or
SO2, sulfur dioxide, NOx and particulate
matter. Carbon dioxide exists where life exists, that is a
fact, and where prosperity exists. CO2 from fossil
fuels will never be present in significant concentrations to
affect air quality as I understand it under the Clean Air Act.
It is my opinion, but it is an informed opinion--I have
been on this committee for 23 years--that the Clean Air Act is
not designed to regulate carbon dioxide concentrations in any
way that is economically or practically possible, as some of
our witnesses I hope will acknowledge today. The main reason is
that carbon dioxide is global. Anything we do here is
completely meaningless unless the entire world is also doing
the same thing at the same time. The last time I looked, the
EPA doesn't have authority in Beijing, China, or New Delhi,
India, or Jakarta, Indonesia.
I am also cognizant of the fact that if you want to
regulate something and try to reduce the particular
concentration of that item, you have to have the technology to
do that. Congress has never authorized the EPA to regulate an
emission when the technology did not exist to meet that
particular challenge. When we last amended the Clean Air Act in
1990, we knew that utilities could buy flue gas desulfurization
equipment--it was already on the shelf--or switch to low-sulfur
fuel. When the EPA clamped down on NOx, we knew that
low-NOx burners and even selective catalytic
reduction technology was readily available. This equipment was
expensive and still is but at least it afforded a rational path
to emission control without disrupting energy supply. It is not
the case with CO2. There are a lot of promising
ideas out there right now on how to deal with carbon dioxide
but there is not anything that is commercially available at a
competitive price that our industries can afford to pay. It
just doesn't exist.
Lastly, I would like to talk a little bit about the science
of global warming. There are many people that say the science
is settled and we shouldn't even debate it. I am not one of
those people. Just last week an eminent scientist in Hungary
resigned from his position as a consultant, I believe, with
NASA because he has a new theory about climate change that much
more fits what has actually happened. The current models that
are used for climate change, the basic theory was established
about 80 years ago and those theories keep predicting more and
more temperature rise as CO2 concentrations slightly
increase in the atmosphere. Unfortunately, for that particular
theory, it can't predict the past, much less the future, even
half correctly over half the time. This gentleman has a
different model and different mathematical theory that much
more closely tracks what is actually happening on the planet,
as least as we know it in the past. Officials wouldn't accept
his theory so he resigned. My point is that it is a fact that
the climate is warming. It has been slightly warming for the
last 150 years and it is expected to continue to slightly
increase for the next 100 to 150 years, so far as we know, so I
don't dispute that. It is not a fact, it hasn't been
scientifically proven, to my satisfaction, that it is automatic
that we are going to undergo extreme temperature discomfort in
the next 100 years or 200 or 300 years. So I think we need to
spend more money to get the science right before we go through
with some of the proposals that are on the table today.
The last thing is that we all accept that if we do
something to significantly reduce CO2 and greenhouse
gases, it is going to be very, very expensive. Nobody disputes
that on either side of the debate. I am not sure that given
where our economy is today, where the world economy is right
now, that we can afford to implement, at least in the short
term, any of these ideas.
So Mr. Chairman, I really am very appreciative that we are
holding this hearing on Massachusetts v. EPA. I have got great
respect for the Supreme Court but as we used to say down in
Texas, they put their pants on one leg at a time too, even the
gentlelady, who I am sure on occasion doesn't wear skirts and
wears pantsuits. So just keep that in mind. We are all human.
We all have opinions. The Supreme Court is a group of nine men
and women, some of the most eminent legal experts in our
country, but they are just people like us.
With that, Mr. Chairman, I yield back.
Mr. Butterfield. I thank the ranking member.
At this time the chair recognizes the gentleman from the
State of Washington, Mr. Inslee.
OPENING STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Inslee. Thank you. I am sure the time will come when
you can hear that gurgling sound of the last climate change
skeptic drowned out by the rising waters and you can just hear
that gurgling sound happening. I don't know when that will
happen. I know the day will come.
I would suggest there are three laws we should think about
here: the law of science, the law of democracy, and the law of
supply and demand. The first law, science, I wish all of my
colleagues had been at the global warming hearing yesterday
when true experts about the public health aspects of global
warming testified before us. Dr. George Benjamin, Donna Best,
Jonathan Patz, Mark Jacobson, Howard Frumpkin, leaders of the
CDC, leaders from Stanford, leaders from the various
associations, and every single one of them told us
unequivocally that the health of the citizens of the United
States of America is in jeopardy as a result of global warming.
They told us that our children will have more frequent asthma
as a result of ozone increasing, as a result of CO2
increasing. They told us that there will be more West Nile
virus that Americans will be subjected to and perhaps Lyme
disease and perhaps malaria. They told us that there will be
more heat-related deaths in America and they told us this
unequivocally and to the person, and anyone who thinks this is
expensive to deal with, the solution, they ought to see the
expense of not dealing with the problem. Our kids getting sick
due to asthma because Congress sits here like the ostrich with
our head in the sand and our tail feathers in the air is very
disquieting, and every single one of them told us that global
warming is a cause or contributing factor to endangering
Americans' public health. That is the law of science. There is
not a realistic debate about that issue.
Second is the law of democracy. It seems to me with all due
respect to all concerns about the EPA acting that we ought to
follow the laws of democracy and the law of democracy says the
EPA, according to law, should have acted a long time ago. And
it would be one thing, frankly, if the Administration wanted to
defer action until we had a reasoned debate to get a cap-and-
trade system, but that is not what this Administration is
interested in. We had the Secretary of Energy sitting at this
table 2 months ago. We asked him if he had read the IPCC
report. Our Secretary of Energy never even read the report. I
asked him if he talked to the President of the United States,
our Secretary of Energy, about adopting a cap-and-trade system.
He said no, I have never talked to the President of the United
States about a cap-and-trade system. Who in this room thinks
that we are deferring action in the EPA while George Bush
thinks with his cabinet member about how to design a cap-and-
trade system that will work in this country? I don't see any
hands going up. Because that is not what is going on here. It
is simply a delaying tactic to try to delay action so that this
President will leave office without having done anything about
a global warming problem.
And third is the law of supply and demand. I respect that
we need new technologies but the law of supply and demand says
you have to have the demand to drive the supply. We have to
create a demand for these clean technologies. If we build that
demand, they will come, and that is what we need to get done.
Thank you.
Mr. Butterfield. At this time the chair recognizes the
gentleman from Michigan, Mr. Rogers.
Mr. Rogers. I yield.
Mr. Butterfield. The gentleman yields. Would you like to
add that time to your time later?
Mr. Rogers. Yes.
Mr. Butterfield. Any other member on the minority side wish
to give an opening statement?
The chair recognizes the gentleman from Utah, Mr. Matheson.
Mr. Matheson. I will waive.
Mr. Butterfield. The gentleman has waived. Thank you.
Well, I believe this concludes the opening statements by
the--yes, there is one. All right. The gentleman from
Massachusetts is recognized.
OPENING STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS
Mr. Markey. Thank you, Mr. Chairman, very much, and thank
you for calling this hearing.
In 1998, in response to an inquiry by then-Representative
Tom DeLay, the Clinton Administration's EPA said that it
believed it had the authority to regulate carbon dioxide under
the Clean Air Act. One year later, a group of environmental and
other advocacy organizations petitioned the EPA to use its
authority to set greenhouse gas standards for cars but it
wasn't until 2003, when the Bush Administration had already
embarked on a course of denial, delay, and dismissal of the
risks of climate change and the need to address it that the EPA
repudiated the Clinton Administration's conclusions that carbon
dioxide was a pollutant that could be regulated and denied the
petition. That petition became the case known as Massachusetts
v. EPA.
Until April of 2007, more than 6 years after taking office,
the Bush Administration continued to assert that it lacked the
authority to regulate carbon dioxide. It continued to assert
that the science was uncertain, that voluntary programs to
reduce emissions would be sufficient and that rhetorical policy
goals should take the place of binding regulatory language. It
continued to fight the States, who were pushing it to move
ahead, and continued to stall Federal action. But all that had
to change in April of 2007, when the Supreme Court ruled that
carbon dioxide is a Clean Air Act pollutant and that EPA could
not hide behind its smokescreen any longer. The Supreme Court
also said that EPA must determine whether these emissions
endanger public health or welfare, a determination often
referred to as an endangerment finding. And finally, if the EPA
does make a positive endangerment finding, it must regulate
greenhouse gas emissions from motor vehicles.
In May of last year, the President directed EPA, along with
other agencies, to prepare a regulatory response to the Supreme
Court decision. EPA testified to Congress and repeatedly
promised that both the endangerment finding and the proposed
regulations would be finished by the end of 1997. That did not
happen. Instead, what we have learned from a steady stream of
press reports and congressional hearings is that EPA in fact
concluded that greenhouse gas emissions endanger public
welfare, and submitted its findings to OMB in December of last
year. EPA in fact drafted greenhouse gas regulations for motor
vehicles and submitted its draft to other agencies in December,
and then, according to numerous reports, EPA stopped all of its
work in this area except for its work to deny California,
Massachusetts, and more than a dozen other States the right to
move forward with their own motor vehicle emissions standards.
About 2 weeks ago, EPA finally responded by announcing that
more than 7 years after President Bush first took office that
it needed to think about this issue some more. So this advance
notice of proposed rulemaking really is nothing more than
taking aspirational goals and turning them into
procrastinational goals for the Bush Administration so that
they can walk out of the White House on January 20, 2009,
without ever having done anything. That is why this hearing is
so important.
I thank you, Mr. Chairman.
[The prepared statement of Mr. Markey follows:]
Statement of Hon. Edward J. Markey
Thank you very much for calling this important hearing on
the role of the Clean Air Act in the regulation of greenhouse
gas emissions.
In 1998, in response to an inquiry by then-Representative
Tom Delay, the Clinton Administration's EPA said that it
believed that it had the authority to regulate carbon dioxide
under the Clean Air Act. One year later, a group of
environmental and other advocacy organizations petitioned the
EPA to use this authority to set greenhouse gas standards for
cars.
But it wasn't until 2003, when the Bush Administration had
already embarked on a course of denial, delay, and dismissal of
the risks of climate change and the need to address it, that
the EPA repudiated the Clinton Administration's conclusion that
carbon dioxide was a pollutant that could be regulated, and
denied the petition. That petition became the case known as
Massachusetts vs EPA.
Until April of 2007, more than 6 years after taking office,
the Bush Administration continued to assert that it lacked the
authority to regulate carbon dioxide. It continued to assert
that the science was uncertain, that voluntary programs to
reduce emissions would be sufficient, and that rhetorical
policy goals should take the place of binding regulatory
language. It continued to fight the States, who were pushing it
to move ahead, and continued to stall Federal action.
But all that had to change in April of last year when the
Supreme Court ruled that carbon dioxide IS a Clean Air Act
pollutant, and that EPA could not hide behind its smokescreen
any longer. The Supreme Court also said that EPA must determine
whether these emissions endanger public health or welfare, a
determination often referred to as an `endangerment finding.'
And finally, if the EPA does make a positive endangerment
finding, it must regulate greenhouse gas emissions from motor
vehicles.
In May of last year, the President directed EPA, along with
other agencies, to prepare a regulatory response to the Supreme
Court decision. EPA testified to Congress and repeatedly
promised that both the `endangerment finding' and the proposed
regulations would be finished by the end of 2007.
Well, that didn't happen. Instead, what we've learned from
a steady stream of press reports and congressional hearings is
that:
EPA in fact concluded that greenhouse gas
emissions endanger public welfare, and submitted its finding to
OMB in December of last year.
EPA in fact drafted greenhouse gas regulations
for motor vehicles and submitted its draft to other agencies in
December.
And then, according to numerous reports, EPA
stopped all of its work in this area--except for its work to
deny California, Massachusetts, and more than a dozen other
States the right to move forward with their own motor vehicle
emissions standards.
About 2 weeks ago, EPA finally responded--by announcing,
more than 7 years after President Bush first took office, that
it needed to think about the issue some more.
Instead of issuing the endangerment finding and proposed
regulations required by the Supreme Court, it announced that in
May or June, it would announce an ``Advanced Notice of Proposed
Rulemaking'' on using the Clean Air Act to regulate greenhouse
gas emissions. They've said there probably wouldn't be any
regulatory proposals contained in whatever it is they release--
rather, they would just lay out the issues and give everyone
else 60 to 90 days to tell EPA what THEY thought. Then it seems
that they will spend the fall thinking about what everyone else
thinks, and then, well, they will run out of time and will
leave office, without having done a thing.
There are no doubt complexities and ramifications to moving
forward with the regulation of greenhouse gases under the Clean
Air Act, complexities that a committed President could and
should have dedicated time and attention to before the 11th
hour of his term. The Clean Air Act has been a highly
successful pollution control weapon for decades, and we should
be using all the weapons in our arsenal to combat the threat of
global warming. However, many experts have also said that best
way to deal with global warming is for Congress to pass an
economy-wide cap and trade program, something I hope we can do
this year. But Members of this Subcommittee should not lose
sight of the fact that this Administration has said
unequivocally that it doesn't support a cap and trade program
for greenhouse gases either.
Instead of using its authority to take regulatory action in
the face of scientific consensus that greenhouse gas emissions
are placing the earth in peril, and instead of working with
Congress cooperatively to craft a legislative approach, the EPA
instead made a cynical move to announce what more accurately
could be called an ``Aspirational Notice of Procrastinational
Rulemaking','' designed to run out the clock on the entire 8-
year Bush Administration.
----------
Mr. Butterfield. I thank the gentleman for his opening
statement.
That concludes the opening statements by members of the
subcommittee. At this time we are going to turn to the one
witness who is seated at the table now. I want to thank the
witness again for coming forward today. He is no stranger to
many on this committee. He is the honorable Bob Meyers,
Principal Deputy Assistant Administrator for Air and Radiation
at the Environmental Protection Agency. Prior to serving at
EPA, Mr. Meyers was counsel to this committee and so therefore
we welcome him back. You have 5 minutes. Thank you.
STATEMENT OF ROBERT J. MEYERS, PRINCIPAL DEPUTY ASSISTANT
ADMINISTRATOR, OFFICE FOR AIR AND RADIATION, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Meyers. Thank you, Mr. Chairman and members of the
subcommittee.
As this committee well knows, the Clean Air Act has evolved
over several decades through a series of legislative
enactments. What began in 1955 as the Air Pollution Control Act
underwent a series of extensions and amendments before it
became the modern Clean Air Act in 1970 and most recently when
it was substantially transformed by the 1990 Clean Air Act
amendments. This committee, indeed this very room, has been the
location of many debates and negotiations over the scope and
purpose of various individual provisions. Thus, there is
probably no better place to discuss issues involving the
strengths and weaknesses of various Clean Air Act authorities.
This hearing is also timely. As has been noted,
Administrator Johnson informed the full committee in a recent
letter that he has decided to issue an Advance Notice of
Proposed Rulemaking that will present and request and comment
on the best available science and examine ways in which the
regulation of GHG emissions under one provision of the Clean
Air Act interacts with or could lead to regulation of GHG
emissions under other provisions of the Act and allows
presentation of questions about and the implications of
possible regulation of stationary and mobile sources.
In the broader context, the ANPR led to the substantial
work already undertaken on climate change. Since 2001, under
the leadership of President Bush, the Administration has
devoted over $45 billion in resources to addressing climate
change science and technology. The Administration has also
implemented and is in the process of implementing mandatory
programs that will potentially prevent 5 to 6 billion metric
tons of GHG emissions through 2030. Overall, the Bush
Administration is implementing over 60 Federal programs that
are directed at developing and deploying cleaner, more
efficient energy technologies, conservation, biological
sequestration, geological sequestration and adaptation.
As the members of this subcommittee well know, however, the
individual provisions of the Clean Air Act can be complex. So I
will attempt the art of the feasible in about 5 minutes. As my
written testimony more fully explains, in addition to the
mobile source provisions at issue in the Massachusetts case,
the Clean Air Act provides three main pathways for potential
regulation of stationary sources. Sections 108 and 109 provide
the EPA with authority to establish pollutant-specific National
Ambient Air Quality Standards to protect public health and
welfare. To meet the standards, States develop enforceable
State plans under section 110, aided by emission standards
issued under other sections of the Act. There are also detailed
implementation language provisions contained in part D of
subchapter 1. Section 111 authorizes the EPA to establish
emission performance standards for categories of new stationary
sources. This section also calls for States to issue
performance standards for existing sources in the same
categories for which EPA regulates new sources but only when
the pollutant in question is neither listed as a pollutant to
be regulated through the National Ambient Air Quality Standards
under section 109 or regulated from source categories under
section 112. Section 112, the third prong, provides EPA with
authority to list and issue national emission standards for
hazardous air pollutants, or HAPs. As substantially amended in
1990, this section contains low thresholds for regulation of 10
tons for individual HAP and 25 tons for multiple HAPs.
Pollutants regulated under section 112, however, are not
subject to the Prevention of Significant Deterioration program,
or PSD program.
Regarding the PSD program, this is required by section 165
and other sections, and under the program, new major stationary
sources and modifications of existing major stationary sources
undergo a pre-construction permitting process and install Best
Available Control Technology for each regulated pollutant.
These basic requirements apply regardless of whether a national
ambient air quality standard exists for the pollutant. With
regard to mobile sources, Title II of the Act provides the EPA
with authority to promulgate standards for a wide variety of
on-road and off-road vehicles as well as marine sources and
aircraft. EPA has used the Title to achieve deep emission
reductions in pollutants such as lead, hydrocarbons, nitrogen
oxide, particulate matter and carbon monoxide. The Title
literally covers hundreds of millions of individual sources
including cars, trucks, construction equipment, off-road
vehicles, lawn and garden equipment, ships, and locomotives.
To try and sum up, I would offer the following points. The
overall complexity and interconnections of the Clean Air Act
provisions require careful evaluation before any final action
involving GHGs is taken. Clean Air Act authorities may be
available to address GHG emissions for many sources of mobile
and stationary emissions and some authorities may trigger or
even preclude the use of other authorities. Some authorities
provide substantially more flexibility for EPA to tailor
requirements because they provide the EPA with discretion
regarding what types and sizes of sources to regulate, how to
regulate them, and authority to fully weigh costs in setting
emissions standards. Other authorities, however, can preclude
technology choices or the consideration of costs. The Clean Air
Act authorities vary in complexity and they allow for setting
standards and providing compliance time periods and they may
not--I am sorry--allow for setting standards or providing
compliance time that would be optimal. And just to sum up, the
Clean Air Act authorities vary in whether they are subject to
statutory review periods and during the statutory review
periods, what additional assessment of the regulatory levels
and actions previously undertaken can take place.
I realize that trying to do this is about stuffing 20
pounds of potatoes in a 1-pound sack, so I will try to stop at
this moment and move on to questions from the committee. Thank
you.
[The prepared statement of Mr. Meyers follows:]
[GRAPHIC] [TIFF OMITTED] T1574.001
[GRAPHIC] [TIFF OMITTED] T1574.002
[GRAPHIC] [TIFF OMITTED] T1574.003
[GRAPHIC] [TIFF OMITTED] T1574.004
[GRAPHIC] [TIFF OMITTED] T1574.005
[GRAPHIC] [TIFF OMITTED] T1574.006
[GRAPHIC] [TIFF OMITTED] T1574.007
[GRAPHIC] [TIFF OMITTED] T1574.008
[GRAPHIC] [TIFF OMITTED] T1574.009
[GRAPHIC] [TIFF OMITTED] T1574.010
[GRAPHIC] [TIFF OMITTED] T1574.011
[GRAPHIC] [TIFF OMITTED] T1574.012
[GRAPHIC] [TIFF OMITTED] T1574.013
[GRAPHIC] [TIFF OMITTED] T1574.014
[GRAPHIC] [TIFF OMITTED] T1574.015
[GRAPHIC] [TIFF OMITTED] T1574.016
[GRAPHIC] [TIFF OMITTED] T1574.017
[GRAPHIC] [TIFF OMITTED] T1574.018
[GRAPHIC] [TIFF OMITTED] T1574.019
Mr. Butterfield. I want to thank the gentleman for his
testimony. His written testimony will certainly be included in
the record. This concludes the opening statement of this
witness and we are now going to proceed with questions from the
members.
I will recognize the gentleman from Michigan, the chairman
of the full committee, Mr. Dingell, for questions. Would the
chairman like to ask questions of the witness?
Mr. Dingell. Mr. Chairman, I thank you for your courtesy.
I want to begin by welcoming Mr. Meyers back to the
Committee. Welcome, Mr. Meyers. You served here with
distinction and we are pleased that you are continuing to have
success.
I would like to address first New Source Performance
Standards. One source of regulatory authority is section 111,
which establishes a New Source Performance Standard program.
Despite its name, it covers both new and existing stationary
sources, including power plants, refineries, large industrial
facilities of all kinds. I am aware of two options for
regulating under these provisions, neither of which seems to be
optimal. Am I correct, and just yes or no to this, that EPA
regulates approximately 75 source categories under section 111
and that if CO2 is regulated under the section, EPA
would eventually need to determine whether CO2
limits are appropriate for each of these 75 source categories
and EPA might add more categories to the list, yes or no?
Mr. Meyers. You are correct. There are 74 source categories
and the question of regulation would be before the agency.
Mr. Dingell. Thank you. Now, first of all, there will be
lots of sources in these existing source categories. Isn't that
so?
Mr. Meyers. Yes.
Mr. Dingell. Can you submit to us, then, an approximate
number of those which might be a matter of concern to EPA? You
can submit that for the record.
Mr. Meyers. Yes, we------
Mr. Dingell. Now, am I correct that the traditional way of
regulating under section 111 is for EPA and the States to issue
standards for specific types of new and existing stationary
sources and require each affected source to meet the standard
without the use of cap and trade, yes or no?
Mr. Meyers. We have done that. We also use section 111,
however, within our Clean Air Act Mercury Rule for a cap-and-
trade program.
Mr. Dingell. All right. Now, let us take a look at the
authorities that EPA can use or can be forced through
litigation to use. First of all, New Source Review; second,
State Implementation Plans; third, New Source Performance
Standards; fourth, the authority that EPA has over automobiles,
trucks, non-road engines, aircraft, and fuel. Is that correct?
Mr. Meyers. Yes, all the authorities you mentioned would
cover mobile and stationary sources regulated under the Act.
Mr. Dingell. Now, your testimony raises the possibility
that EPA might use section 111 to set up a cap-and-trade
program. I am going to ask you to submit for the record what
that will be and how that would be done, but I am going to ask
you at this time, that appears to be what the agency attempted
to do when it adopted its mercury rule for power plants. Is
that correct?
Mr. Meyers. My testimony discusses some ideas that we will
advance through the ANPR process, but you are correct that in
implementing or in promulgating those regulations we used 111
for cap and trade.
Mr. Dingell. Thank you. Now, under the mercury rule, EPA
had to act in cooperation with the States to set up a cap-and-
trade program, and many of the States did not cooperate.
Industry was then faced with a patchwork of programs instead of
one national cap-and-trade program. Then the court vacated
EPA's rule. Industry still now has to meet requirements in some
States but not others, and eventually we assume that they will
have to meet some kind of Federal requirement. Is this
statement true?
Mr. Meyers. The court vacated our rule that----
Mr. Dingell. Just yes or no.
Mr. Meyers. Yes. There will be----
Mr. Dingell. Thank you. Now we confront a new problem. Once
the New Source Review is triggered with respect to greenhouse
gas emissions, does that mean that before a company could build
a new coal-fired power plant or make a major modification to an
existing coal-fired power plant, the permitting authority could
add CO2 and would probably have to add
CO2 emission requirements to the permitting process?
Is that true, yes or no?
Mr. Meyers. If there was a determination with regard to
endangerment, which is the subject of our ANPRM and the comment
we are seeking now and the 111 program became applicable, it
would be applicable to air pollutants under the Act.
Mr. Dingell. Now, Mr. Meyers, I would appreciate an
estimate from you as to how many sources would be subject to
NSR if the threshold were 5,000 to 10,000 tons per year, and I
will submit that in writing and ask unanimous consent, Mr.
Chairman, that that be inserted into the record.
Now, Mr. Meyers, I believe that if an industrial facility
had been a minor source for sulfur dioxide but is a major
source for carbon dioxide, the permitting process then would
treat this as a major source for both pollutants. Is that
correct?
Mr. Meyers. Yes.
Mr. Dingell. Now, I assume that from a policy perspective,
you do not believe that it would be a good idea to apply NSR to
all stationary sources that emit more than 250 tons of
greenhouse gases per year. Is that correct or false?
Mr. Meyers. We haven't made any determinations as to what
applicable thresholds might be. The 250 is the tonnage limit
for some sources under the PSD program and 100 tons is another
threshold in the PSD program.
Mr. Dingell. Now, Mr. Meyers, if you would, please, submit
for the record how EPA could limit NSR so that it does not
apply to all of these small sources. Can you do that? Can you
limit it so it would not apply to all of these small sources?
Mr. Meyers. This is one of the issues that we would be
looking toward the ANPRM for further public notice and comment.
Mr. Dingell. Now, the matter would certainly be litigated,
would it not?
Mr. Meyers. A lot of--most everything that the Clean Air
Act----
Mr. Dingell. And it would be difficult, if not impossible,
for us to predict the consequences of that litigation and that
a bunch of goodhearted, overenthusiastic judges might decide
what should be done. Is that correct?
Mr. Meyers. Yes.
Mr. Dingell. Thank you.
Mr. Chairman, I thank you for your courtesy.
Mr. Butterfield. Does the chairman yield back?
Mr. Dingell. Yes.
Mr. Butterfield. At this time the chair recognizes the
ranking member of the subcommittee, Mr. Upton.
Mr. Upton. Thank you, Mr. Chairman, and I just want to say
in response to Mr. Dingell's opening statement and his
questions and the opening statement by my good friend and
current ranking member and former chairman Barton, I think that
there is a way that we can get bipartisan cooperation to fix
this problem that is before us if we put those two in a room
and allow them to address this issue.
As I said in my opening statement, I am one that believes
that it was not Congress's intent for the EPA to regulate
carbon-based on the legislation that was passed in the very
early 1990s. As I look to the future, Mr. Meyers, I certainly
appreciate your friendship and work in this committee before
but we have heard statistic that our energy needs are going to
grow by 50 percent by the year 2030, and if you maintain the
current mix of power, electricity, power to our country, and we
maintain the current levels, whether it be nuclear, coal,
natural gas, et cetera, we use a little more than 50 percent of
our energy comes from coal. About 20 percent comes from
nuclear. So as we grow by 50 percent, that means that we are
going to have to build 750 new coal plants. We are going to
have to have them online by the year 2030. We are going to need
52 new nuclear plants by that same time to maintain 20 percent.
What is particularly troubling is that in the last year, 23
States have blocked 30 new coal plants coming online. The most
recent one that has had a lot of attention of course is the
situation in Kansas that was heralded just this last week.
I guess the question that is burning in my mind as we think
about the future is, under the Massachusetts v. EPA ruling,
will the EPA have the authority to also then weigh in on the
permitting process as it relates to CO2 for any of
these 750 new coal plants that American consumers and
businesses are going to have to use for coal energy in the
future? Do you envision the EPA being very involved in the
application process for those new plants, yes or no?
Mr. Meyers. Well, I think the fact of the matter is, we are
involved in a sense currently. We have comments that pertain to
these permits that raise CO2 issues so currently the
issue arises and we respond to the comments and the permitting
already.
Mr. Upton. But without carbon sequestration, which of
course that technology is not quite with us yet, can you
envision not only having a major role in the new application or
permitting of these but also in the current operation of those
plants that are producing electricity across the country?
Mr. Meyers. I think a good frame of reference would be the
analysis that we have done for various legislation that
Congress is considering, and when you look at that analysis, it
contemplates both heavy penetration of carbon capture and
sequestration as well as a ramp-up in nuclear power as possible
strategies to meet the thresholds that are placed on the power
sector under legislative provisions of the Act.
Mr. Upton. Would that mean--would you have a role then in
perhaps the early retirement of some of these different plants
across the country if they are not using carbon sequestration?
Mr. Meyers. The role that EPA will have in the future under
the Clean Air Act is one of the main reasons we are going with
the ANPRM, because of the complexity of all the
interconnections between regulating the pollutant under one
program and application of both the PSD in construction and
modifications, as well as Title V operating permits. These are
major questions that would occur and so these are the types of
questions we think are very complex and needing of public
input.
Mr. Upton. Let me ask this last question before my time
expires. Can Title I of the Act effectively implement emission
reductions for an emission when the control technology does not
exist or is not commercially demonstrated or available?
Mr. Meyers. Title I includes all the provisions I cited in
my testimony so it is fairly broad. If the cases are that the--
the existence or non-existence of technology would not matter
in certain provisions of Title I like NAAQS. It would matter in
other provisions of Title I, such as the section 111 program,
which looks to best demonstrated technology. So it depends on
the provision under Title I.
Mr. Upton. Thank you.
Mr. Butterfield. All right. The gentleman has completed his
questions, and it looks like we may have three votes on the
House Floor at this moment. How does the Committee wish to
proceed?
Mr. Upton. Why don't we go on your side and then come back?
Mr. Butterfield. All right. Let us try one set of questions
and then we will proceed to the Floor.
At this time the chair recognizes the gentleman from
Georgia, my friend, John Barrow.
Mr. Barrow. I thank the chair. Mr. Chairman, I should like
to yield my time to my friend on the Committee, the gentleman
from California, Mr. Waxman.
Mr. Butterfield. The gentleman from California is
recognized. Now, is that permissible under the rules?
Mr. Upton. Yes.
Mr. Waxman. Thank you, Mr. Chairman and Mr. Barrow, for
being so gracious to yield me your time.
I know some members are concerned about the potential
complications of regulating greenhouse gases under the Clean
Air Act, especially for small sources. Our distinguished
chairman has even referred to the prospect of a glorious mess.
I disagree. We can deal with global warming under the Clean Air
Act, and the sooner we do it, the easier and less expensive it
will be. One reason we need immediate EPA action is simple.
When you are in a hole, the first thing to do is stop digging.
In global warming, that means putting a moratorium on building
huge new sources of CO2 emissions. The permits
pending before EPA and the States to build massive new power
plants across the country will add hundreds of millions of tons
of CO2 emissions to the atmosphere, but EPA claims
it can't do anything about these emissions until it commits to
regulating CO2. At our Oversight Committee hearing,
we asked EPA Administrator Johnson about this issue and he said
it would be premature to require any global warming pollution
controls on new power plants because EPA hadn't yet decided how
to regulate CO2. Mr. Meyers, is this still the EPA
position? Do you think it is premature to require new power
plants to use state-of-the art controls to limit CO2
emissions?
Mr. Meyers. The Administrator had indicated at the hearing
that he would be taking a case-by-case approach to the
individual power plant permits that were under consideration by
the agency and that is still the position of the agency.
Mr. Waxman. So, in a case-by-case analysis for permitting
these power plants, would EPA use its discretionary authority
to require state-of-the-art technology to reduce CO2
emissions under some of these permits?
Mr. Meyers. We have received in some cases fairly extensive
comments with regard to the CO2 issue in individual
permit actions, so we would respond to the comments that we
have received in the permitting process.
Mr. Waxman. So you would decide a permitting process not
uniformly, but case-by-case. Why case-by-case and not uniformly
if there is going to be additional CO2 emissions?
Mr. Meyers. Case-by-case is essentially the nature of the
permit program so that would be a consistent practice of the
agency over the last decades.
Mr. Waxman. If this means that you are not going to make
any decision to give a signal to all the permitees that will
come in requesting the authority to go ahead and build a new
power plant, that might mean that nothing will happen, if you
are trying to wait to decide how you are going to deal with
CO2 emissions overall. Is that right?
Mr. Meyers. I think we will be taking a case-by-case
approach in looking at the individual CO2 emissions
and the comments. We have not contemplated a more holistic
approach at this point in time. I think the ANPRM is also a
facility and vehicle that we can receive comments on some of
the pending agency issues such as those you referenced.
Mr. Waxman. Well, I worry about EPA doing nothing and
allowing these 27 new coal-fired power plants to get their
permits. None of these plants will have the state-of-the-art
control technology for global warming. They are projected to
emit about 400 million tons of greenhouse gases each year. That
is more CO2 emissions than are currently emitted by
entire States. The approval of just one plant that EPA is
considering, the Desert Rock Plant in New Mexico, would negate
the emission reductions currently being implemented by eight
northeastern States in the first regional greenhouse gas cap-
and-trade program. Mr. Meyers, if EPA acknowledges the obvious,
that greenhouse gases may endanger health or the environment,
would EPA then agree it has the authority to regulate the
CO2 emissions from these new power plants?
Mr. Meyers. In the endangerment determination there is
statutory language that is contained in several provisions of
the Act. In the permitting issue of PSD, we would be looking
essentially----
Mr. Waxman. Now, you are not answering my question. My
question is, if EPA came to the conclusion that there is an
endangerment, that greenhouse gases may endanger health or the
environment, then EPA would clearly have the power and
authority to regulate CO2 emissions from these power
plants. Isn't that correct?
Mr. Meyers. There are two--there are essentially two steps.
There is the endangerment determination and then the second
step I think you are referencing would be the decision to
regulate, and those would be separate steps in the process
contemplated by Massachusetts v. EPA.
Mr. Waxman. The fact is, there are multiple ways EPA could
prevent these new plants from being built without state-of-the-
art controls and there are strong arguments that EPA must or
may set protective permit terms before finding endangerment,
and EPA clearly can issue national New Source Performance
Standards for power plants and other sources under section 111
of the Act. Isn't that correct?
Mr. Meyers. Power plants are currently a listed category
under section 111.
Mr. Waxman. Okay, but none of this will happen if EPA is
sitting on its hands. The decision not to control emissions
from these new power plants is really a decision to allow the
CO2 emissions from these power plants. That is why I
think the EPA position is so untenable.
Now, I understand there are concerns about EPA taking
action, that once EPA regulates, smaller new or modified
sources that have never previously had to obtain permits might
have to get them, but I think this is a red herring. Mr.
Meyers, has anyone petitioned or urged EPA to require these
smaller sources to get permits?
Mr. Meyers. I am not aware of a current petition, no.
Mr. Waxman. EPA has a long history of implementing the
Clean Air Act in a practical and workable way, and if it turns
out that the statute doesn't provide sufficient flexibility,
Congress could easily give EPA that flexibility. A one-line
change in the Act would give EPA temporary flexibility to
increase the threshold for regulating small sources of
CO2 emissions. This would win widespread support if
combined with genuine efforts by EPA to regulate new power
plants.
Mr. Meyers, this Administration has spent the past 7 years
doing everything possible to deny and delay action on global
warming. I think it is a shame, and the longer we wait, the
greater the risk from global warming and the more costly it
will be to reduce these emissions, and that will hurt all of
us.
Mr. Butterfield. The gentleman's time has expired.
All right. As you can see, Mr. Meyers, you know what we
have to do right now. We will reconvene 10 minutes after the
last vote, which should be about 25 minutes from now. The
Committee is in recess.
[Recess.]
Mr. Butterfield. Let the Committee be back in session.
Thank you for your patience. We are ready to resume.
At this time the chair recognizes the distinguished ranking
member of the full committee, Mr. Barton.
Mr. Barton. Thank you, Mr. Chairman, and thank you for
reconvening the hearing expeditiously. I appreciate that.
Mr. Meyers, you were a member of the committee staff on
this committee for a number of years. Isn't that true?
Mr. Meyers. Yes, that is true.
Mr. Barton. What years were you a member of the committee
staff?
Mr. Meyers. From early 1995 until 2004.
Mr. Barton. From 1995 to 2004. So you were not here in 1990
when we last amended the Clean Air Act?
Mr. Meyers. I was chief of staff to another member on the
committee who was on the conference committee for the 1990
amendments so----
Mr. Barton. So you were a personal staff member of a member
of the Committee?
Mr. Meyers. That is correct.
Mr. Barton. Okay. Well, I was on the Committee in 1990, and
I looked at the roster of the current membership of the
Committee and my count is that there are 11 members of the
committee today that were members of the Committee in 1990
including the distinguished chairman of the full committee, Mr.
Dingell. I do not remember even an amendment that would have
made CO2 a criteria pollutant under the Clean Air
Act. I don't even remember a debate about it. And I
participated in all the public hearings and was a participant
in many of the private meetings on a bipartisan basis. Since
you were a chief of staff for a member of the Committee at the
time, do you recall any amendments that would have regulated
CO2 as a criteria pollutant under the Clean Air Act
amendments of 1990?
Mr. Meyers. I don't remember any amendments, sir. The 1990
amendments themselves included section 821, which is a
reporting provision for power plants, and then within the
context of Title VI, the direction is for the agency to
evaluate global warming potential of ozone-depleting gases. I
can't speak comprehensively if there was any amendment to
criteria pollutants. I certainly don't remember one.
Mr. Barton. It is a true statement that CO2 is
not listed as a criteria pollutant under the Clean Air Act. Is
that not correct?
Mr. Meyers. That is correct.
Mr. Barton. Okay. Do you have an opinion whether Congress
intended to confer authority upon the EPA to regulate
CO2 emissions under either Title I, the stationary
sources title of the Act, or Title II, mobile sources of the
Clean Air Act?
Mr. Meyers. Sir, that touches on some of the issues that
were in litigation in the Massachusetts v. EPA case and the
position of the agency prior to the Supreme Court's case. So I
would defer to the opinion of the Supreme Court in that matter.
Mr. Barton. Well, that is the whole point of this hearing,
Mr. Meyers. The Congress doesn't have to defer to the Supreme
Court. As I pointed out in my opening statement, we appreciate
those paragons of legal knowledge at the court but they are
human beings and their opinions are just that, opinions, and my
recollection is, it was a 5-to-4 decision, which means a very
close call. My understanding, and you can correct me if I am
wrong, is that under the majority opinion of Massachusetts v.
EPA, what the court ruled is that the EPA has to decide whether
to regulate CO2 or not. It didn't say that the EPA
had to. Is that not correct?
Mr. Meyers. No, that is correct. I was referring to
arguments that were raised in litigation on behalf of the U.S.
Government during the litigation on Massachusetts v. EPA.
Mr. Barton. Let me ask you another question. Is there any
evidence about specific levels of CO2 causing
individual health problems?
Mr. Meyers. At ambient concentrations, that would not be
the case. There is an exposure standard that is used for OSHA,
which is approximately, I think, around 3,000 parts per
million.
Mr. Barton. Three thousand parts per million. Million or
billion?
Mr. Meyers. PPM.
Mr. Barton. PPM, parts per million. But the current ambient
CO2 concentration in the atmosphere is around 350.
Is that correct?
Mr. Meyers. Approximately, yes.
Mr. Barton. So you have got to go 10 times----
Mr. Meyers. It is either 3,000 or it could be as much as--
--
Mr. Barton. But there aren't any cases right now of
children going into emergency rooms because of CO2
inhalation or there is no evidence that CO2 causes
cancer, there is no evidence that CO2 causes brain
damage. In other words, under what we normally regulate
pollutants under the Clean Air Act and the Safe Drinking Water
Act, there is no evidence that CO2 is harmful to
health. Is that not correct?
Mr. Meyers. Under the Clean Air Act, the ambient standards,
if you are talking here--this question goes to whether direct
health impacts from inhalation----
Mr. Barton. Well, isn't the standard we use in the Clean
Air Act right now that it has to be directly harmful to
individual health?
Mr. Meyers. The----
Mr. Barton. SO2 and NOx and all that?
Mr. Meyers. There are different health-based standards. In
the NAAQS context, it is adverse effect on public health or the
environment, and so I guess--we do have U.S. standards that
deal with confined exposure to CO2, and certainly in
that situation CO2 would be a direct physical effect
for health. The issue with respect to CO2 in the
environment or the health-related issue is the question of
endangerment. That is before the agency.
Mr. Barton. Okay. My last question, Mr. Chairman. I
appreciate the courtesy.
When Mr. Waxman was here, he was somewhat chagrined that
EPA is not categorically rejecting new permit applications for
coal plants because of their CO2 emissions. As I
understand the law, under the current law, there is no
requirement that you even consider CO2 as a
pollutant for an air quality permit. Is that not correct?
Mr. Meyers. It is not a regulated pollutant under the Act
right now and I think the reference is probably to the Deseret
Bonanza decision of last year in which we----
Mr. Barton. But under the current law, if I present to you
a permit request for a coal plant, it is not required by
Federal law that you even have to list the CO2
emissions, is it?
Mr. Meyers. No, it is not directly required.
Mr. Barton. Because it is not a criteria pollutant. Thank
you, Mr. Chairman.
Mr. Butterfield. At this time the chair recognizes the
gentleman from Utah, Mr. Matheson.
Mr. Matheson. Thank you, Mr. Chairman.
Mr. Meyers, thanks for coming to the committee today. I was
going to ask you a question about something I saw in your
testimony. I believe you mentioned in your testimony that there
are several sections in the Clean Air Act that EPA believes
would give the EPA authority to implement a cap-and-trade
system as a way to regulate greenhouse gas emissions. Did I
read that correctly?
Mr. Meyers. Yes. We have implemented cap and trade in
different contexts, primarily under section 110 with regard to
state implementation plans and then within section 111, as I
mentioned earlier, it was part of our Clean Air Mercury Rule.
Mr. Matheson. What options would EPA have in determining
how to distribute allowances under a cap-and-trade program?
Mr. Meyers. That is a good question. I would like to give a
fuller response for the record, but in terms of the way we have
implemented cap and trade, we actually did not distribute the
allowances, since it was a State-implemented plan. We gave the
States a budget and the States were in a position to decide
among their sources their obligations to meet the budget.
Mr. Matheson. I am assuming you have the flexibility to
implement a program where, if you were distributing allowances,
you could auction some of them. Does the EPA have--what is your
understanding of what EPA regulations or rules would guide you
in how you would use the revenues from auctioning those
allowances? Could EPA help make the decision about how those
revenues would be distributed?
Mr. Meyers. I think there are other statutes that would go
to the question of what the disposition of any revenues that
the EPA might collect through sale or auction of the
allowances. I mean, the main program we have obviously is in
Title IV of the Act and, you know, in that we do have an
auction, a small auction provision that Congress authorized for
Title IV allowances.
Mr. Matheson. It just seems to me that the two biggest
issues, and there are a lot more complexities, and I don't want
to oversimplify, but on cap and trade is where you set the cap
year by year and how you deal with the allowances. I am just--
let me not to repeat, but do you think you have sufficient
guidance, authority or rules in place to take on that level of
complexity in terms of setting up a cap-and-trade program or
would you need direction from Congress in how you do that?
Mr. Meyers. I think EPA generally has great experience with
cap-and-trade programs through the 18 years it has been
operating the acid rain program and in other contexts, so I
think we have technical expertise. We have been asked similar
questions with respect to what we would need in terms of staff
and money for a potential carbon cap and trade and I think we
can provide the responses that we provided to Congress in that
respect.
Mr. Matheson. Let me ask you if you were to implement a
program to try to reduce greenhouse gas emissions by a certain
date and time, how could or how would the EPA go about
determining the appropriate level and schedule of emission
reduction that its regulations should achieve?
Mr. Meyers. These are some of the very broad and complex
issues that I think the ANPRM process is designed to solicit
public input. We do not have an opinion as an agency right now
with respect to those issues.
Mr. Matheson. But you do think the agency has the authority
or the ability to come up with that through that process, a
schedule of reductions over time or a target?
Mr. Meyers. My remarks, I think, were with regard to our
technical ability in the cap-and-trade area. The authority
implies legal authority, which is a separate issue.
Mr. Matheson. And do you think you have that legal
authority to do that?
Mr. Meyers. The issue in front of us, Massachusetts v. the
EPA, and the remand from the district court, is the issue of
endangerment, which is inherent in the authority under the Act
on that particular litigation.
Mr. Matheson. Would you have the flexibility when you are
setting up regulations to maybe take a look at different types
of sources, and there may be some sources that are more
applicable for reductions early on, whereas other sources may
not be applicable and you would extend time for that? Instead
of a general cap and trade, would you want to divide sources up
into different categories for scheduled emissions?
Mr. Meyers. I think as my testimony reflects, the agency
has done some work and thinking with regard to stationary
sources. With respect to ability or categorization of larger
sources versus smaller sources, that is something that we have
given some thought to, and again, would like to solicit public
input but again, the major threshold issue that has not been
decided and needs to be addressed through the ANPRM is the
endangerment issue and the remand from Massachusetts v. EPA.
Mr. Matheson. Thank you.
Mr. Chairman, I will yield back.
Mr. Butterfield. The gentleman yields back.
At this time the chair recognizes my friend from Illinois,
Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
Bob, welcome back. You heard my opening statement. It is
good to see you. I held up--you understand part of my concern
is that we have the Clean Air Act, we have a Supreme Court
ruling. I do believe it is legislating. I think the best aspect
we could do to move forward is to legislate. You cannot by
current authority consider the economic pain or gain in any
aspect of this deliberation. Is that correct?
Mr. Meyers. That is correct with respect to NAAQS
standards. We have Supreme Court opinion that says that we
cannot consider cost. It is also correct with regard to the
face of the section 112 authority over hazardous air
pollutants.
Mr. Shimkus. So if there is huge job dislocation caused by
the process which you may rule, you can't make any statement on
that?
Mr. Meyers. Well, in the NAAQS area, no. I mean----
Mr. Shimkus. Okay. That means that if there is price
escalation to the tune of doubling the cost of electricity, you
can't mention that in your process?
Mr. Meyers. Well, these are some of the issues that I think
are important to get the widest range of opinion. They go to
the complexity of the Act and the constraints that different
provisions provide and so it makes it very important that we
have the type of reasoned public debate that we want to have
through the ANPRM because of----
Mr. Shimkus. But let me--I mean, that is the public debate
and you use an acronym. Can you explain----
Mr. Meyers. Oh, I am sorry. Advanced Notice of Proposed----
Mr. Shimkus. So you are talking about the public debate
held within the agency for this rulemaking process, correct?
Mr. Meyers. Well----
Mr. Shimkus. Or the whatever process?
Mr. Meyers. The ANPRM that we are developing will be put
out in the Federal Register and then we will----
Mr. Shimkus. This is versus a public debate that we would
have on the Floor if we would move legislation that would be
able to address economic dislocation of climate change
legislation?
Mr. Meyers. Congress has the ability to draft new
legislation in the way it sees fit. Our duty is to interpret
the Clean Air Act under the law and the precedents that have
been established by the courts.
Mr. Shimkus. Which means no economic calculations involved
in this process?
Mr. Meyers. In certain programs, that is true. In other
programs under the Clean Air Act, for example, under section
111, we can look at economic and technical feasibility factors.
It depends, sir, on where you end up within the Clean Air Act.
Mr. Shimkus. And that brings a big debate, because my
friends talk about the cap and trade, which is a house of
cards. It worked with SOx because technology was
available. What current technology is available today that can
capture carbon on the vast majority of coal-fired plants that
would be pulverized coal?
Mr. Meyers. Carbon capture and sequestration technology is
now the subject of research and development actions.
Mr. Shimkus. So there is no current technology to do this
on current coal-fired plants?
Mr. Meyers. People are exploring and----
Mr. Shimkus. That produces 50 percent of the electricity
consumed in this country today.
Mr. Meyers. No. As an agency we are trying to address that
issue also in terms of storage issues on----
Mr. Shimkus. But my debate is, for people who want to
compare this carbon dioxide to the Clean Air Act and the cap-
and-trade paradigm, they are wrong to assume that technology is
currently available to do this for the vast majority of
electricity-generating plants fueled by coal. Am I correct?
Mr. Meyers. Yes, sir. In 1990, when Title IV was enacted,
flue gas desulfurization technology did exist. It wasn't as
widely deployed as it became under Title IV. It did exist.
Today, carbon capture and sequestration technology exists but
it has not been demonstrated on a commercial scale yet. I think
there are efforts to do that but right now----
Mr. Shimkus. That is a big issue, commercial scale, which
is multitudinally larger than desktop or even a micro facility.
Mr. Meyers. Absolutely, and I think most projections would
say that it would be some time before it is available.
Mr. Shimkus. Mr. Chairman, I will yield back. My time is
expired. I would just say beware, America, the costs of climate
change will be enormous. I yield back my time.
Mr. Butterfield. Thank you.
The chair recognizes the gentleman from the State of
Washington, Mr. Inslee.
Mr. Inslee. Mr. Meyers, I am Jay Inslee from the North
Seattle area. Thanks for being here. Are you engaged in the
effort to develop an administration cap-and-trade system?
Mr. Meyers. No.
Mr. Inslee. Or have you spoken to the President about that?
Mr. Meyers. Have I spoken to the President? No.
Mr. Inslee. Have you spoken with Mr. Johnson about that?
Mr. Meyers. We have spoken to Mr. Johnson in briefings
about many issues under the Clean Air Act, including available
authorities that I think, as referenced earlier, have some cap-
and-trade authority, but we are proceeding in the context of an
ANPRM to make use of some of that work and get public comment
on it.
Mr. Inslee. Has Mr. Johnson said something like, well, this
is a suboptimal way to do it, what we really need to do is do a
statutory cap-and-trade system and so let us go that route? Has
he said anything like that?
Mr. Meyers. I wouldn't recall a direct quote along those
lines. I mean, we obviously have many conversations with the
Administrator on a daily basis so I don't--I couldn't state
what his personal preferences would be.
Mr. Inslee. Well, what I am trying to get at is, is the
agency playing the four corners offense here, just not moving
on the rule because you really want to go through a statutory
cap-and-trade system because you think that is a better way to
handle this problem, or you are just doing the four corners
stall because you just don't want to do something?
Mr. Meyers. Well, the agency, which is part of the
Administration, has not taken a position on cap-and-trade
legislation. I think where we see the next step of moving the
ball forward is to get the ANPR out that will show the
appropriate deference to the complex issue.
Mr. Inslee. Right, and then that is my concern. You know,
to me, there is a big difference between the EPA playing the
North Carolina four corners, you know, Bush to Cheney to
Johnson to somebody else and nothing ever happens because you
want to do a cap-and-trade system and do it statutorily,
because you might think that is a better way to go, or what is
happening, which is you are stalling both proposals, one a
statutory cap-and-trade system, which numerous Cabinet
officials have sat in your chair right there and said they are
not working on it, they are not taking a position on it, nor
are you acting on the rulemaking, and that is simply the fact
that is going on here, and I think the public is very
disenchanted with this, the Supreme Court is disenchanted about
it, I am disenchanted about it.
Let me ask you about the endangerment decision. Let me ask
you, do you believe that carbon dioxide causes or may
contribute to air pollution which may reasonably be anticipated
to endanger public health or welfare?
Mr. Meyers. That is a legal question before the agency in
terms of endangerment.
Mr. Inslee. Right, so what is the answer?
Mr. Meyers. Well, since this is a question in front of the
agency, a question that is the subject of ongoing litigation, I
am not in a position to give a----
Mr. Inslee. Well, it was subject to ongoing litigation. It
is no longer subject to ongoing litigation. You have been
ordered to make that decision----
Mr. Meyers. It is----
Mr. Inslee. --and that jury--let me finish my question--
that jury is in. This jury is in. Every single public health
official of any credibility in this country has concluded that
CO2 can cause or contribute to air pollution which
may be reasonably anticipated to endanger public health or
welfare. Now, there may be an issue what to do about that, but
wouldn't you agree that everyone who has looked at this issue
from a health perspective would answer that question ``yes''?
Wouldn't you agree with that?
Mr. Meyers. Actually, no, I would not agree with that. I
think the question that the Supreme Court presented to us was
whether endangerment existed. That is the question that we are
dealing with.
Mr. Inslee. Right. And who is the medical professional who
tells us we shouldn't worry about carbon dioxide changing the
climate? Who is that person?
Mr. Meyers. I am not trying to refer to any particular
person. I am just saying that is an issue before the agency.
Mr. Inslee. Well, why is it an issue, because every single
person who has given you input on this has told you that we are
going to have more asthma, more vector-borne illnesses, more
heat stroke. You go right down the line. And isn't it true that
virtually every single public health official who has examined
this has told you that that is going to happen? Isn't that
true?
Mr. Meyers. When you referenced ``told you,'' I am not sure
if you are talking about rulemaking of the agency or----
Mr. Inslee. I am talking about told you. Hasn't everybody
told you--it is your job to decide on this question and
everybody in America who knows their hat from a hole in the
ground knows that this is happening and they have told you
that, haven't they?
Mr. Meyers. The Supreme Court has told us that we need to
decide this issue.
Mr. Inslee. So why don't you do it?
Mr. Meyers. We are proceeding along that path.
Mr. Inslee. No, you aren't. You haven't made an
endangerment decision, and you can do that. You have got health
information, you know, from here to kingdom come on this issue.
Now, there is a question of what you do about it, but the first
question you have to answer is the endangerment decision and
you have adequate information to make that today because there
is unanimity on this subject. Isn't that true?
Mr. Meyers. No, I cannot agree with that statement.
Mr. Inslee. Then who is not unanimous about it? Tell me,
the doctor that says you shouldn't worry about increased
asthma, malaria, and Lyme disease. Tell me who that doctor is
and what day they got their license pulled, will you?
Mr. Meyers. The administrator is charged with making that
decision under the Clean Air Act.
Mr. Inslee. I understand that, but why don't you answer my
question? Tell me the doctor who has told you this is not a
public health concern in America.
Mr. Meyers. Our public process and the process that we have
to use under the Administrative Procedure Act to solicit public
comment on various issues will be used, and that will be the
context in which we will receive the----
Mr. Inslee. Well, just one more question. I assume what you
are telling me is, you can't think of one, right?
Mr. Meyers. I am not saying that at all. I just cannot
respond to a question that asks me to say who told me. I am a
person. I am an appointee of this Administration.
Mr. Inslee. Who told the agency?
Mr. Butterfield. The gentleman's time is expired.
At this time the chair recognizes the gentleman from
Kentucky, Mr. Whitfield.
Mr. Whitfield. Thank you, Mr. Chairman, and Mr. Meyers, we
are delighted that you are here with us today. I might add that
I don't think the evidence is quite as strong as some people
would say. I remember when Albert Gore was here testifying and
Bjorn Lomborg testified with him that day, and he wrote the
book ``The Skeptical Environmentalist'' and was one of the
strongest environmentalists in Europe, but in that book and in
his testimony, he talked about how they went around and they
had a meeting with Nobel laureates from around the world and
they looked at issues facing the world and they prioritized
them from 1 to 10, and global warming was nine on the list, or
maybe even 10 on the list. And the issue was, with finite
resources, what are some of the most important issues that we
could address, and 1 or 2 on that list was AIDS and so forth.
But I point that out simply to say that I don't get the
impression that EPA is dragging their feet. I mean, this
Supreme Court decision was rendered about 1 year ago. Is that
correct?
Mr. Meyers. That is correct, April 2 of last year.
Mr. Whitfield. And I know that the ramifications of that
decision are quite complex and you are trying to go through the
process of determining this endangerment issue and I suspect
that a lot of other petitions have been filed by States. I am
assuming other lawsuits have been filed on similar issues. Is
that correct?
Mr. Meyers. Yes. We have a total of seven rulemaking
petitions on mobile sources. There are also--we are also
involved in litigation, including a mandamus action that was
recently filed.
Mr. Whitfield. So, I mean, I think the point that I would
like to make, that this is not quite as clear-cut and easy to
resolve as some people might lead us to believe, and it is
understandable that if you feel strongly that this should be
rendered, how people would be upset about it but it has been my
experience in the government, I don't care if you support an
issue or you don't support an issue, there is a regulatory
process that you go through and sometimes it takes a lot longer
than we like, and that is precisely what you all are doing now.
You have a proposed rulemaking. Is that correct?
Mr. Meyers. We are proceeding to put together an Advance
Notice of Proposed Rulemaking, which would be scheduled to be
done with that late spring of this year. I think it does
reflect the fact that these are complicated issues. There are a
lot of interactions within the Clean Air Act and the
administrator thinks this is the responsible course of action.
Mr. Whitfield. And do you have any idea, what would the
comment period be on this proposed rulemaking?
Mr. Meyers. Giving recognition to both the need to proceed
quickly, as well as the need to give a sufficient period of
contemplation would be a period normally of at least 60 days,
60 to 90 days.
Mr. Whitfield. I have no further questions.
Mr. Butterfield. The gentleman yields back.
All right. My friend from California, Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Meyers, I want to follow up on my earlier questions. I
raised the Desert Rock plant in New Mexico, and I want to ask
you, do you know what the projected CO2 emissions
would be from that plant?
Mr. Meyers. I believe there are some calculations that were
done on the order of 12 million.
Mr. Waxman. It is 12.7 million tons of greenhouse gases
every year. Do you know the cumulative reductions the
northeastern States are expected to get under their cap-and-
trade proposal?
Mr. Meyers. No, I do not have that figure.
Mr. Waxman. Well, my understanding is that they will get
approximately 12 million tons of reductions annually, so what
you have is, eight States taking us one significant step
forward and then EPA, if it approves just one plant without the
state-of-the-art controls, moves us even a bigger step
backwards, and that is what is troubling to me. It doesn't make
any sense. Does it make any sense to you?
Mr. Meyers. I think I tried to indicate that under the
Clean Air Act, a case-by-case determination of the available
control technology----
Mr. Waxman. Put that aside. Does it make any sense to allow
one power plant to go forward that is going to emit as much
CO2 emissions as will get reduced in eight States as
they work hard to put in place a cap-and-trade program? Does it
make sense, without all the gobbledygook or permitting of that
or the----
Mr. Meyers. Well----
Mr. Waxman. If you wanted to do something about
CO2 emissions, does it make any sense?
Mr. Meyers. Sir, I think as an administration, we have
tried to do a lot of things with respect to this issue. We
think there is a heavy technology component which we are
investing in. We are moving forward in the international arena
so I think we are taking a broad approach to the problem. In
the instant case, I think our duty, as I said, is to implement
the Clean Air Act with respect to the law and the current
regulatory situation, so in that sense, I think we need to
consider this on a case-by-case basis.
Mr. Waxman. Well, the main justification EPA gives us for
delaying their action is that the issue is too complex and EPA
needs more time to think through possible approaches but we
have looked at this in the Oversight Committee, and what we
learned was that EPA has actually invested enormous resources
into thinking through the implications of regulating
CO2 and how to do this, and Mr. Chairman, I would
like to make part of the record a letter I sent to the EPA
administrator on March 12, 2008. This letter describes the work
that has already occurred at EPA.
Mr. Butterfield. Without objection.
[The information appears at the conclusion of the hearing.]
Mr. Waxman. The EPA process was so thorough that in
December the EPA administrator concluded that CO2
endangers the environment and sent a proposed endangerment
finding to the White House. He also sent proposed motor vehicle
regulations to the Department of Transportation for comment.
Four months ago, EPA had enough information to recommend
immediate action. Nothing has changed since then that justifies
the continued delay.
Mr. Meyers, when the Supreme Court announced its decision,
didn't EPA almost immediately realize it had significant
implications for stationary sources?
Mr. Meyers. I think we recognized that within a short time
that it was a very important decision and we looked at the
implications across a lot of different areas of the Clean Air
Act, yes.
Mr. Waxman. And in fact, hadn't EPA identified the relevant
statutory authorities that EPA could use to regulate
CO2 under the Clean Air Act as far back as 1998?
Mr. Meyers. I was not at the agency at that point in time.
I believe reference was--you are referring to the Cannon memo.
If that is the case, I believe that does cite authorities under
the Act.
Mr. Waxman. So EPA has had a lot of time to think about
this. In fact, as I mentioned, investigations by the Oversight
Committee reveal that EPA actually made a lot of progress last
year. Mr. Meyers, were you briefed on these issues last summer
and didn't the agency's political appointees identify new
source standards under section 111 as preferable to other
authorities as a way to address global warming from stationary
sources?
Mr. Meyers. There were a number of briefings that were
held. I believe I was briefed directly and part of other
briefings that occurred. We did look at the New Source
Performance Standard program as part of those briefings.
Mr. Waxman. And didn't the briefings identify it as
preferable to act in this way rather than use other authorities
you might have?
Mr. Meyers. I think some of these documents may be the
subject of ongoing actions for the procurement but I would
state that the agency did look very broadly at the Act and
looked at different provisions and different provisions have
different strengths and weaknesses.
Mr. Waxman. The administrator wants to delay the action on
global warming until EPA completes the advance notice process,
but EPA has already analyzed these issues and made a
determination to go forward with an endangerment finding and
motor vehicle regulations. The world isn't standing still while
EPA ponders. People are making plans and investments and
companies are building new sources of global warming pollution.
We need to start taking global warming into account in all of
these decisions. EPA can be part of the solution or it can try
to make finding a solution more difficult and complicated. We
need you to be proactive and to work with us to deal with these
urgent problems. I know there is only a short period of time
left while the President's EPA political appointees are in the
positions you have, but I would say to you and to others, we
need you to work with us in this time frame because as time
goes by, the problems are going to be more expensive, the
results are going to make our efforts even more complicated,
and I really don't have a question there, but I make that
request to you.
Mr. Chairman, I yield back the balance of my time.
Mr. Butterfield. I thank the gentleman.
At this time the chair recognizes Mr. Walden from Oregon.
Mr. Walden. Thank you, Mr. Chairman.
Mr. Meyers, I am not an attorney but I am curious, this
Cannon memo that has been referenced, when did that get
written?
Mr. Meyers. I believe it was late 1990s, I think 1998.
Mr. Walden. And that was under the Clinton Administration
then?
Mr. Meyers. Yes, it was under a previous administration.
Mr. Walden. And that is the one that I am hearing said the
EPA has the authority to regulate carbon dioxide under the
Clean Air Act. Is that right?
Mr. Meyers. That was the opinion of the former general
counsel of the Environmental Protection Agency.
Mr. Walden. I am trying to figure out, on January 23, 2001,
which would have been in the Federal Register on a Tuesday
which would have been right after the Clinton Administration
left office but would have been placed in the Congressional
Record before they left office, the EPA sought public comment
on a petition trying to determine if it had that authority,
which leads me to think maybe somebody else at the EPA in the
Clinton Administration didn't think they had the authority.
Otherwise why would they go out and seek public comment to
determine if they had that authority?
Mr. Meyers. I think that action was taken in response to
the petition filed by ICTA, the organization that requested EPA
exert authority to address mobile source pollution.
Mr. Walden. Why couldn't they have just done it based on
the Cannon memo? Why did they have to go out and seek comment?
Mr. Meyers. I wasn't at the agency at that point in time so
I don't know why they make the particular decision.
Mr. Walden. Doesn't it leave the question of maybe they
were uncertain whether they had that authority, or am I
misreading this?
Mr. Meyers. I would not want to speculate as to events I
did not participate in.
Mr. Walden. Then let us move on to some other issues,
because on this--let us say you do determine an issue of
finding that there is a problem. What does that trigger?
Mr. Meyers. Is your question with reference to
endangerment?
Mr. Walden. Yes.
Mr. Meyers. Well, under the Supreme Court decision, it
would trigger--in the context of the petition under section
202----
Mr. Walden. Then you have to start regulating carbon
dioxide, right?
Mr. Meyers. From motor vehicles under 202 was the subject
matter of the petition.
Mr. Walden. All right. Then let me ask you this. If you
start doing that, I want to know as a practical application,
what does that mean? I have got two hybrid vehicles, I have
got--my wife drives one that isn't. What is that going to mean
to the consumer? How do you regulate it?
Mr. Meyers. Well, that is a decision obviously we haven't
made. The petition involved four greenhouse gases enumerated
from vehicles, primarily carbon dioxide. Over 90 percent of the
emissions are a product of combustion. So effectively it is
addressed through efficiency measures similar to CAFE standards
established by the Department of Transportation. Other
emissions from air conditioning systems or other byproducts of
combustion are methane and nitrous----
Mr. Walden. What about soot? Could you regulate soot?
Mr. Meyers. We currently do regulate particulate matter.
Mr. Walden. In the Select Committee hearing yesterday on
this issue of climate change versus public health, a professor
from Stanford University when asked said soot, methane and then
carbon dioxide are the three ways you could address global
climate change, and he said soot would be the quickest because
it breaks down in a year-and-a-half to 2 years. Methane is
faster and then CO2 takes 30 to 50 years to get out
of the atmosphere. So I am wondering, are there other options
out there, other than just CO2, that might actually
deal with greenhouse gases or the warming climate faster?
Mr. Meyers. Well----
Mr. Walden. Because all we ever hear about here is
CO2.
Mr. Meyers. Well, there are, you know, six generally
recognized greenhouse gases under the international framework,
although there are other gases that have a global warming
potential.
Mr. Walden. Right.
Mr. Meyers. So they have different atmospheric lifetimes
and they have different effects on the radiant forcing of the
planet, so there are different approaches but CO2 is
focused on, I think because of----
Mr. Walden. Let me ask you a different question then. Let
us say that the polar bears were listed under the Endangered
Species Act, and the issue is that they are losing their
habitat because of diminishing ice on the polar icecaps.
Wouldn't that listing then trigger EPA to write rules affecting
carbon, but it would affect every activity in the United
States, correct, potentially?
Mr. Meyers. Sir, I am not an expert on the Endangered
Species Act so I would not want to venture an opinion on what
it would trigger under the Clean Air Act.
Mr. Walden. My understanding is that it would, that if, for
example, the polar bear were listed, then anything that
contributed to a diminution of their habitat would have to be
regulated under the Clean Air Act and that would affect carbon
emissions from any change in new construction, everything,
because in theory it affects the habitat.
Mr. Meyers. Well, actions that would involve the Endangered
Species Act would involve a review of the effects on endangered
species so it would be in that context.
Mr. Butterfield. The gentleman's time is expired.
Mr. Walden. Thank you, Mr. Chairman, for your indulgence.
Thank you, Mr. Meyers.
Mr. Butterfield. All right. The gentleman from southern
Louisiana, Mr. Melancon.
Mr. Melancon. Thank you, Mr. Chairman.
Mr. Meyers, thank you for being here today. The
nonattainment areas that are out there in the country, is that
an EPA designation or what does that come from?
Mr. Meyers. Yes, that is, sir. Effectively, the States
nominate those areas after standards are established but the
administrator promulgates the designations for the areas.
Mr. Melancon. What triggers the nonattainment designation?
I know it is air quality but what are the elements that are----
Mr. Meyers. Whether they exceed the design value for the
various pollutants that we regulate under NAAQS, so essentially
if the monitoring data is above the standard.
Mr. Melancon. Is CO2 included in part of the----
Mr. Meyers. No, it is not currently a regulated pollutant,
a regulated NAAQS pollutant.
Mr. Melancon. So if automobiles are considered or, as
occurred in Baton Rouge, expressed as being a large portion of
the problem, isn't CO2 emissions in autos the
problem, and if that is the case, then they shouldn't be in a
nonattainment area. Is that a correct--did I get that confused
for you? In other words, if it is autos that are doing
CO2 and they are saying that this is a nonattainment
area and they are going to have to go in there and do
additional emission controls on the vehicles in the
nonattainment areas, why would they do that if CO2
is not part of the equation?
Mr. Meyers. Well, currently there would be no obligation
for the State or locality to place controls on mobile sources
and there are certain restraints which I won't address in terms
of their ability to do so, but essentially the obligation falls
on the State to create a State Implementation Plan that will
demonstrate attainment with whatever standards are promulgated
as NAAQS.
Mr. Melancon. It falls upon the State but the feds hold the
hammer.
Mr. Meyers. That is correct. The Federal Government, the
administrator establishes the level of the standard but the
States effectively implement it through their State
Implementation Plan.
Mr. Melancon. So if the attainment problem, even though it
is from automobiles, is CO2, which is claimed to be
a large portion of the problem, then doesn't that say that
CO2 is one of these things that you should be
regulating, one of these gases, one of these elements?
Mr. Meyers. In a hypothetical situation in which
CO2 became a NAAQS pollutant, there would be many
results of that, including the duty to have State
implementation plans for CO2 as a regulated NAAQS
pollutant, then one would necessarily have to look at the
sources. There are some obvious complications with that in
terms of the program that has been essentially focused on local
and regional pollutants.
Mr. Melancon. Well, as I understand in Baton Rouge, the
CO2 is the real problem, but plants are not allowed
to come in there and site because of the concern for emitting
more CO2, and if plants fixed sites are in your
jurisdiction and automobiles aren't, then you just got that
into your jurisdiction.
Mr. Meyers. There are provisions which affect new
stationary sources in nonattainment areas and those provisions
would require, in addition to technology, depending on how
anything would be implemented, the possibility of offsetting
emissions.
Mr. Melancon. That didn't really answer the question.
Mr. Meyers. I am sorry, sir. I wasn't trying to duck.
Mr. Melancon. We talked about earlier and some of my
colleagues talked about the carbon sequestration and how it is
not--the technology is not there at this point in time.
However, correct me if I am wrong, the President, in part of
what he did in the energy bill, said we are going to do
cellulosic ethanol and we are going to demand that by a date
certain we are going to have so many million gallons of
cellulosic ethanol. Well, the technology is not here either.
So, you know, if we are going to play semantics, let us just
throw that out the window and forget about the sequestration
and whether it is not perfected. You know, why can't we go in
there and start implementing and set some dates by rules that
we start trying to take care of the CO2 emissions?
Mr. Meyers. Essentially, sir, the issue we have before us
is that of the threshold question presented by the petition of
endangerment and that is an issue that we are seeking comment
on now and that would be associated with standards under the
Act in various provisions, but the particular issue is with
respect to mobile sources so that is still a pending issue
before the agency.
Mr. Butterfield. The gentleman's time is expired. Thank
you, Mr. Melancon.
Well, it looks like that concludes all of the questions for
Mr. Meyers. We want to thank Mr. Meyers for his testimony today
and thank him for what he does for our country. Thank you very
much.
The next panel will please come forward and take their
respective seats. I would like to welcome the four witnesses
who have just come forward and thank each of you for your
extreme patience today. We are now ready to begin with the
second panel. The four participants on the second panel are
David Doniger. David is the Policy Director of the Natural
Resources Defense Council's Climate Center. He served for 8
years in various positions with the Clinton Administration,
including Director of Climate Change Policy at EPA and counsel
to the Assistant Administrator for Air and Radiation. Welcome
to the hearing today, Mr. Doniger.
The next witness, I am told, is referred to at the agency
as Ray L. Thank you, Ray, for coming forward today. Ray is a
partner at Gibson, Dunn & Crutcher. He served for 4 years in
various positions with the Reagan and Bush Administrations,
including general counsel and assistant administrator for
enforcement. Thank you very much for coming today.
The third witness is Professor Lisa Heinzerling. She is a
professor of law at Georgetown University School of Law. She
was the primary author of the Supreme Court briefs for
Massachusetts and other petitioners in the case of
Massachusetts v. EPA, which we will be discussing today as we
have throughout the morning. Thank you, Professor, for coming
to be with us today.
Finally, Peter Glaser. Peter is a partner at Troutman
Sanders LLP. He represented Washington Legal Foundation in
filing an amicus brief in Massachusetts v. EPA. Thank you very
much, Mr. Glaser, for coming forward.
At this time the chair is going to recognize--all right. We
are going to do it in order. Mr. Doniger, you are recognized
for 5 minutes.
STATEMENT OF DAVID DONIGER, POLICY DIRECTOR, CLIMATE CENTER,
NATURAL RESOURCES DEFENSE COUNCIL
Mr. Doniger. Thank you very much, Mr. Butterfield and other
members, for the chance to talk about this important problem.
We appreciate the Committee's commitment to producing global
warming legislation and to reducing CO2 and other
pollutants by as much as 80 percent by mid-century. We urge you
to do that without delay because we have catastrophic impacts
in front of us if we don't act soon.
But this hearing is about what the executive branch should
be doing with the laws that you have already passed. The Clean
Air Act is a powerful tool that should be used to begin
reducing the vast majority of U.S. emissions of these heat-
trapping pollutants. With the Supreme Court's landmark decision
last year, Massachusetts v. EPA, it is now settled that
greenhouse gases are subject to Clean Air Act regulation. For
most of this Administration, EPA has done nothing except try to
close the door on the Clean Air Act, and in the 1 year since
the Supreme Court's rebuke, the Administration has done nothing
except have EPA develop a plan for further procrastination.
I want to emphasize that the strategy the Administration is
now following, which is to seek more comment before making the
endangerment decision, was already rejected by the Supreme
Court in the decision a year ago, because that was EPA's
justification for the original refusal to make the endangerment
determination. It was EPA's position that many things besides
that science question had to be settled first. The Supreme
Court said no, the endangerment decision turns on the science.
You have three options. You can determine that there is a
danger to public health and welfare, you can determine that the
science shows there is not such a danger, or you can explain
why you can't tell, why the science is so confusing.
Well, as of now the Administrator has already declared his
hand on the science. He did so in his decision in March denying
California the authority to implement its vehicle emissions
standards. What he did in this document is very revealing,
because the Administrator's primary justification for denying
California the waiver was his finding that global warming is
happening all across the country, that it is being caused by
emissions all across the country, and that the effects are
occurring all across the country. From this he deduced that
California and the other States should not be allowed to go
ahead. But I would like to read one passage from this decision,
which is written in the first person and signed by the
Administrator. He said, ``Severe heat waves are projected to
intensify in magnitude and duration over portions of the United
States where these events already occur, with likely increases
in mortality and morbidity, especially among the elderly,
young, and frail.'' That sounds to me like a conclusion that
global warming exacerbated by these pollutants is going to
cause death and serious illness. That should lead directly to
an endangerment determination. But no, now he says we have to
take more time to study that question before confirming what
the Administrator said in his own voice a month and a half ago.
It is completely practical to implement most of the Clean
Air Act provisions that have been discussed here today. Section
111 of the Clean Air Act addresses stationary sources such as
power plants and big industrial facilities. It calls for the
setting of technology-based standards that take into account
costs and lead time and the availability of technology. So do
the mobile source provisions. So it is completely feasible to
use those provisions to take a significant bite out of the
global warming pollution from our cars, our fuels and our major
industrial facilities. While we support new legislation, we
want to see the existing legislation implemented.
Now, there has been a lot of talk about the use of the
National Ambient Air Quality Standards. NRDC does not recommend
the use of the National Ambient Air Quality Standards system.
We don't think that it is the most appropriate part of the
Clean Air Act to use. It is focused on reducing concentrations
in the atmosphere, which for CO2, as others here
have noted, are not readily subject to local control. What are
subject to State and local and Federal control, are the
emissions going into the atmosphere. That is why we recommend
using the other parts of the Clean Air Act that deal with major
sources directly and require technological controls to reduce
those emissions.
Further, there are provisions in the Clean Air Act we think
could be used by the EPA to justify a decision not to set a
National Ambient Air Quality Standard even as it goes ahead
under these other practical provisions of the law. We said so
in the Massachusetts briefing and I am sure Professor
Heinzerling will say more about this.
And finally, the New Source Review issue. Much is being
said about the possibility of dragging in a lot of small
sources. But that, I think, is being used as a dodge against
the perfectly practicable application of Best Available Control
Technology for big sources. We think the EPA has the authority
to deal in a practical, non-burdensome way with the smaller
sources. We support the EPA in working that out and we look
forward to working with them. But we will not countenance
continued delay, and that is why we have gone back to the Court
to try to enforce the Massachusetts decision and get that
endangerment decision made. Thank you.
[The prepared statement of Mr. Doniger follows:]
[GRAPHIC] [TIFF OMITTED] T1574.030
[GRAPHIC] [TIFF OMITTED] T1574.031
[GRAPHIC] [TIFF OMITTED] T1574.032
[GRAPHIC] [TIFF OMITTED] T1574.033
[GRAPHIC] [TIFF OMITTED] T1574.034
[GRAPHIC] [TIFF OMITTED] T1574.035
[GRAPHIC] [TIFF OMITTED] T1574.036
[GRAPHIC] [TIFF OMITTED] T1574.037
[GRAPHIC] [TIFF OMITTED] T1574.038
[GRAPHIC] [TIFF OMITTED] T1574.039
[GRAPHIC] [TIFF OMITTED] T1574.040
[GRAPHIC] [TIFF OMITTED] T1574.041
[GRAPHIC] [TIFF OMITTED] T1574.042
[GRAPHIC] [TIFF OMITTED] T1574.043
[GRAPHIC] [TIFF OMITTED] T1574.044
[GRAPHIC] [TIFF OMITTED] T1574.045
[GRAPHIC] [TIFF OMITTED] T1574.046
[GRAPHIC] [TIFF OMITTED] T1574.047
[GRAPHIC] [TIFF OMITTED] T1574.048
[GRAPHIC] [TIFF OMITTED] T1574.049
[GRAPHIC] [TIFF OMITTED] T1574.050
[GRAPHIC] [TIFF OMITTED] T1574.051
Mr. Butterfield. Thank you very much.
The next witness.
STATEMENT OF RAYMOND LUDWISZEWSKI, PARTNER, GIBSON, DUNN &
CRUTCHER LLP
Mr. Ludwiszewski. Mr. Chairman and members of the
subcommittee, I want to thank you for the opportunity to be
with you here today and the invitation to discuss the strengths
and weaknesses of regulating greenhouse gases under existing
Clean Air Act authorities. By way of very brief background, I
have a national law practice specializing in environmental
matters and have been involved in greenhouse gas litigation for
several years. However, I do not appear here today before the
subcommittee representing or advocating the position of any
particular client or industry. I am not receiving any
remuneration from anyone for my testimony today, and the views
expressed of my testimony are my own and not necessarily those
of any company or group that I currently represent or have
represented.
With those preliminaries out of the way, allow me to focus
briefly on the substance of my testimony. There are many
sources of authority for regulating greenhouse gases under the
existing Clean Air Act. I will focus, as I do in my written
testimony, on the four most prominent: the Title I authority
for National Ambient Air Quality Standards; the New Source
Review provisions; the New Source Performance Standard
provisions; and the mobile source provisions under Title II.
While these existing authorities are available to EPA under the
Clean Air Act as tools for regulating greenhouse gases, they
are blunt instruments. They were plainly designed for a
different task of regulating local emissions that were having
local and regional effects. Accordingly, existing Clean Air Act
authorities are, in my view, poorly suited to the challenges of
regulating a global phenomenon such as climate change.
The National Ambient Air Quality Standards are the heart of
the Clean Air Act. Those provisions are triggered when the
Administrator makes an endangerment finding. We have already
heard a lot about endangerment findings and we will hear a lot
more over the months to come. Unfortunately, the program is not
particularly well-suited to the regulation of greenhouse gases.
Compliance with air quality standards is measured by
concentrations in the ambient air, typically in parts per
million. For traditional criteria pollutants, concentrations
generally vary from place to place due to the differences in
local and regional emission sources and the prevailing air
patterns. By contrast, greenhouse gases disperse globally and
they persist in the atmosphere for years. Thus, greenhouse
gases have very different physical qualities than traditional
air pollutants, the traditional air pollutants being what the
National Ambient Air Quality Standards program and indeed much
of the Clean Air Act were designed to combat.
As a result of these fundamental differences in physics,
EPA would have great difficulty distinguishing attainment from
nonattainment areas for any greenhouse gas ambient air quality
standard. Accordingly, unless that standard was set at a level
above current atmospheric concentrations, the EPA would be
required to list all States as nonattainment areas. Moreover,
the States would have no power to change their status from
nonattainment to attainment because in order to reduce air
quality concentrations for a pollutant that is contributed to
around the globe, they would be dependent upon the willingness
of other States, and indeed of other nations around the globe,
to reduce their greenhouse gas emissions. For these reasons and
more, the existing Clean Air Act air quality standards program
doesn't easily adapt to greenhouse gas regulation.
New Source Review has been offered as another opportunity
to regulate greenhouse gases. New Source Review generally
requires preconstruction review and permitting of major
stationary sources. Ordinarily this program only requires
permits from large stationary sources such as electrical
utilities. The statutory threshold, and again, this is set by
law, measured in tons of emissions per year, however, is much
too low for the primary greenhouse gas, carbon dioxide. The
application of the existing definition of major stationary
source to greenhouse gases would greatly expand the universe of
facilities regulated and include in it such items as schools,
office buildings, and apartment buildings. That expanded
universe of regulated sources would likewise vastly complicate
both the State efforts in formulating State implementation
plans and the ability of regulators at all levels to enforce
those plans.
In sum, despite the shortcomings that I have very briefly
outlined thus far, we have underway at this point a chain of
events that could soon compel broad-based use of these existing
Clean Air Act authorities to regulate greenhouse gases. As I
have discussed, each of these authorities is triggered by an
endangerment finding. As recently as last week, the litigants
in Massachusetts v. EPA filed papers to seek to enforce the
Supreme Court's mandate and to compel EPA to issue within 60
days a formal endangerment determination about carbon dioxide's
public health effects. Such a finding could have a cascade
effect covering both mobile and stationary sources and then
triggering a non-discretionary duty on the part of the EPA
Administrator to regulate utilizing current Clean Air Act
authorities.
Mr. Butterfield. I am going to ask you to please close.
Mr. Ludwiszewski. Thank you. I would be happy to answer any
questions.
[The prepared statement of Mr. Ludwiszewski follows:]
Statement of Raymond Ludwiszewski
Mr. Chairman and members of the subcommittee, I want to
thank you for the gracious invitation to be with you here
today, giving me an opportunity to discuss the strengths and
weaknesses of regulating greenhouse gases using existing Clean
Air Act authorities. My name is Raymond Ludwiszewski. I am a
partner with the law firm of Gibson, Dunn & Crutcher LLP, and I
served as General Counsel of the Environmental Protection
Agency under Administrator William Reilly.
I have a national law practice specializing in
environmental matters and have been involved in greenhouse gas
litigation for several years. However, I do not appear before
the subcommittee representing or advocating the position of any
particular client or industry. I am not receiving remuneration
from anyone for my testimony today, and the views expressed in
my testimony are my own and not necessarily those of any
company or group that I currently represent or have
represented. I am not here to recommend any particular course
of action by this subcommittee or Congress. Rather, I have been
asked to offer my views as an experienced practicing attorney
on the avenues available to the Environmental Protection Agency
to address greenhouse gases under existing Clean Air Act
authorities.
There are many sources of authority for regulating
greenhouse gases under the current Clean Air Act, but I will
focus on the four most prominent--and perhaps--problematic: the
Title I provisions on national ambient air quality standards;
new source review and new source performance standards; and the
mobile source program under Title II. While these existing
authorities under the Clean Air Act are available to EPA as
tools for regulating greenhouse gases, they are blunt
instruments, plainly designed for the different task of
regulating local emissions causing local or regional effects.
Accordingly, existing Clean Air Act authorities are poorly
suited to the challenges of regulating this global phenomenon.
If EPA stretches the existing Clean Air Act regime to fit
the needs of greenhouse gas regulation, it will enter uncharted
legal territory. In my experience, new and creative
interpretations of existing statutory authority often are
viewed by industry or environmental groups as disrupting long-
standing, well-settled expectations concerning the boundaries
of agency authority. As such, they invite legal challenge.
Moreover, courts are inherently suspicious of new, novel
statutory or regulatory interpretations that are not obvious
from the face of the law. These prolonged court challenges, in
turn, delay protection of the environment and create
uncertainty in business planning for the regulated community.
Any evaluation of the strengths and weaknesses of using
existing Clean Air Act authorities for regulation of greenhouse
gases should consider these consequences.
National Ambient Air Quality Standards
The ``heart'' of the Clean Air Act is the set of provisions
governing the creation and attainment of national ambient air
quality standards (``NAAQS''). \1\ These provisions are
triggered when the Administrator makes an ``endangerment
finding''--that is, when the Agency determines that emissions
of an air pollutant ``cause or contribute to air pollution
which may reasonably be anticipated to endanger public health
or welfare.'' 42 U.S.C. 7408(a)(1)(A). This key endangerment
finding, in turn, initiates the development of air quality
criteria, id. 7408(a)(2), and primary and secondary NAAQS,
id. 7409(b). The primary NAAQS set a limit on the
concentration of the regulated pollutant in the ambient air at
a level adequate to protect the public health (including an
adequate margin of safety). Id. 7409(b)(1). The secondary
standards protect public welfare and are set at the same or
stricter level than the primary standards. Id. 7409(b)(2).
These standards, or more stringent standards adopted by the
states, are implemented through federally-approved state
implementation plans (``SIPs'').
---------------------------------------------------------------------------
\1\ Train v. Natural Res. Def. Council, 421 U.S. 60, 66 (1975).
---------------------------------------------------------------------------
Unfortunately, this program is not particularly well-suited
to the regulation of greenhouse gases. State and regional
compliance with NAAQS requirements is judged from the
perspective of pollutant concentration in the ambient air.
(That is, the units of measure for the standards governing
current criteria pollutants are expressed in parts per million
by volume, milligrams per cubic meter of air or micrograms per
cubic meter of air). For traditional criteria pollutants,
concentrations generally vary from place to place as a result
of differences in local or regional emissions and prevailing
air flow conditions. In contrast, greenhouse gases disperse
globally and persist in the atmosphere for many years. These
physical characteristics are very different from the physical
qualities of the traditional pollutants that the Clean Air Act
NAAQS program was designed to combat.
As a result of these fundamental differences, which
distinguish greenhouse gases from traditional criteria
pollutants, EPA would have great difficulty distinguishing
``attainment'' from ``nonattainment'' areas for any greenhouse
gas NAAQS. Accordingly, unless the NAAQS standard for
greenhouse gases is set at a level above the current
atmospheric concentration, the EPA could be required to list
all states as nonattainment areas. Under this scenario, a state
could never achieve ``attainment'' status with its own efforts;
rather, the ability of states to reach ``attainment'' would
depend on the willingness not only of other states, but also of
nations around the globe, to reduce their greenhouse gas
emissions. Alternatively, if EPA set the greenhouse gas NAAQS
standard at the current atmospheric concentrations, states
essentially would have to offset all new emissions-both from
their jurisdiction as well as other jurisdictions like India
and China-in their SIPs.
Thus, to regulate greenhouse gases effectively under this
provision, EPA either would need to set the NAAQS standard
above current atmospheric levels for greenhouse gases or would
need to revise the NAAQS concept, taking the focus away from
concentration levels and moving towards emission limitations.
As these choices demonstrate, the inability of states to reduce
greenhouse gases in their environment by their own efforts
creates tension with the fundamental premise of the NAAQS
program- that states mainly reach compliance and, by extension,
attainment via their own efforts.
New Source Review
The physical characteristics of greenhouse gases also
impact another aspect of the NAAQS program--implementation
through the New Source Review (``NSR'') program. NSR
requirements vary based on whether the source is located in an
attainment or nonattainment area, but generally require
preconstruction review and permitting for ``major stationary
sources.'' Sources in attainment areas are subject to the
prevention of significant deterioration or PSD permit program.
In these areas, ``stationary sources,'' as defined below, are
regulated as ``major stationary sources'' if they have the
potential to emit at least 250 tons per year of a regulated
pollutant or, if included on EPA's select list of source
categories, at least 100 tons per year of a regulated
pollutant. 42 U.S.C. 7479(1)(defining ``major emitting
facility'').
The term ``stationary source'' is very broad and includes
``any building, structure, facility or installation'' which
emits or may emit a regulated pollutant. Id. 7411(a)(3).
Although the 100 tons per year or 250 tons per year trigger
generally limits permit requirements to large stationary
sources, like electric utilities, chemical plants, and
refineries, the statutory threshold is not set high enough to
limit ``major stationary sources'' of the primary greenhouse
gas--carbon dioxide. Rather, the application of the definition
of major stationary source to greenhouse gases will greatly
expand the number of facilities regulated. Office and apartment
buildings, hotels, enclosed malls, large retail stores and
warehouses, college buildings, and hospitals could become
subject to the Clean Air Act permitting process for the first
time. \2\ The expanded universe of regulated sources would
greatly complicate both the state efforts in formulating state
implementation plans and the ability of regulators at all
levels to enforce those plans.
---------------------------------------------------------------------------
\2\ See Massachusetts v. U.S. EPA Part II: Implications of the
Supreme Court Decision: Hearing Before the H. Select Comm. on Energy
Independence and Global Warming, 110 Cong. (2008) (statement of Stephen
L. Johnson, Adm'r, U.S. Envtl. Protect. Agency).
---------------------------------------------------------------------------
To combat this explosion of regulated sources, EPA will
have limited flexibility. Due to the nature of the
requirements--preconstruction review and permitting--the NSR
program is source-specific by definition. Accordingly,
utilizing cap and trade as a tool under this program would be
very challenging.
New Source Performance Standards
The New Source Performance Standards (``NSPS'') offer
another available avenue for regulation of greenhouse gases.
Section 111 requires EPA to publish a list of industry
categories and to adopt standards of performance reflecting
``the degree of emission reduction achievable through
application of the best system of emission reduction.'' 42
U.S.C. 7411(a)(1).
Sources, not pollutants, are the trigger for these
provisions. The Administrator must list ``categories of
stationary sources . . . if in his judgment [those sources
cause, or contribute] significantly to, air pollution which may
reasonably be anticipated to endanger public health or
welfare,'' id. 7411(b)(1)(A), and must then publish federal
standards of performance for such sources. Id. 7411(b)(1)(B).
This NSPS authority might provide EPA more flexibility than
the NAAQS program. For example, in setting NSPS, EPA can
distinguish among different types of sources in setting
standards. Also, unlike NAAQS, EPA can take into consideration
cost, non-air impacts, and energy requirements in NSPS
standards. Id. 7411(a)(1). In implementation, EPA cannot
require the use of a particular technology, but the Act does
provide the flexibility to express the standards as design,
equipment, operational or work practice requirements. Id.
7411(h).
In promulgating programs like the Clean Air Interstate Rule
and the Clean Air Mercury Rule, the EPA has interpreted the
phrase ``standards of performance'' to include market solutions
like cap-and-trade programs. \3\ However, the use of cap-and-
trade programs under Section 111 is recent, and new Section 111
rules have been challenged by some states. Most recently, the
Clean Air Mercury Rule, one of the first cap-and-trade programs
under this provision, was overturned in February 2008 by the
D.C. Circuit--albeit for reasons independent of the use of cap-
and-trade under Section 111. \4\ The Clean Air Interstate Rule
also is the subject of a judicial challenge by some states.
---------------------------------------------------------------------------
\3\ Standards of Performance for New and Existing Stationary
Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606,
28,616 (May 18, 2005) (``The term `standard of performance' is not
explicitly defined to include or exclude an emissions cap and allowance
trading program. In the final rule, EPA interprets the term `standard
of performance,' as applied to existing sources, to include a cap-and-
trade program.'').
\4\ State of New Jersey v. Envtl. Prot. Agency, 05-1097 (D.C. Cir.
Feb. 8, 2008) (vacating Clean Air Mercury Rule).
---------------------------------------------------------------------------
Just as these creative solutions by EPA under Section 111
have invited litigation, we can expect that similar expansive
uses of existing authorities to address greenhouse gases would
generate lawsuits. Prolonged litigation is time consuming for
agency staff, delays protection of the environment, and creates
uncertainty for the regulated community.
Mobile Source Regulation
Motor vehicles, motor vehicle engines, and fuels are
regulated under Title II of the Clean Air Act. Section
202(a)(1) of the Act requires the Administrator to prescribe
``standards applicable to the emission of any air pollutant
from any class or classes of new motor vehicles or new motor
vehicle engines, which, in his judgment cause, or contribute
to, air pollution which may reasonably be anticipated to
endanger public health or welfare.'' Id. 7521. Under Section
202(a)(2), the Administrator must consider cost and
technological feasibility in setting standards. Id.
752(a)(2). \5\
---------------------------------------------------------------------------
\5\ Section 202(a)(2) reads: ``Any regulation prescribed under
paragraph (1) of this subsection (and any revision thereof) shall take
effect after such period as the Administrator finds necessary to permit
the development and application of the requisite technology, giving
appropriate consideration to the cost of compliance within such
period.''
---------------------------------------------------------------------------
As a matter of basic physics, the only practical means for
reducing greenhouse gases emissions from gasoline-powered motor
vehicles is to improve their fuel economy. Thus, regulation of
greenhouse gas emissions under the Clean Air Act will
inevitably intersect with fuel economy regulation under other
federal statutes such as the Energy Policy and Conversation Act
and the Energy Independence and Security Act. While the Supreme
Court's decision in Massachusetts v. EPA clearly contemplated
overlap between regulation of fuel economy and mobile source
greenhouse gas emissions, an important aspect of that decision
also recognized that regulation in this area can, and should
be, the product of a coordinated inter-agency effort.
Specifically, Massachusetts v. EPA envisioned a coordinated
inter-agency approach to addressing the manner in which the
federal government should enact motor vehicle emissions
standards to address climate change. So, the use of existing
Clean Air Act authorities to address mobile source greenhouse
gas emissions must necessarily ensure that effect is given to
the goals and purposes of each of the congressional enactments
that are implicated.
Conclusion
Finally, it is worthy of note that a chain of events may be
well underway that would soon compel broad-based use of these
existing Clean Air Act authorities to regulate greenhouse gas
emissions. As noted above, each of the authorities discussed-
NAAQS, NSR, NSPS, and Title II mobile source regulation-are
triggered by an ``endangerment finding.'' Once that finding is
made, the EPA Administrator's discretion to avoid regulating is
often very limited or non-existent. Moreover, an endangerment
finding concerning greenhouse gases in one context--regardless
of whether it is made for mobile source emissions or for
stationary source emissions--would have wide implications. For
example, if EPA were to make an endangerment finding with
respect to mobile sources, the Government believes that finding
would also constitute an endangerment finding for stationary
sources. \6\ As recently as last week, the litigants in
Massachusetts v. EPA filed papers to seek to enforce the
Supreme Court's mandate and to compel EPA to issue a formal
``endangerment'' determination about carbon dioxide's public
health effects within 60 days. Such a finding could have a
cascade effect covering both mobile and stationary sources and
triggering a non-discretionary duty on the EPA Administrator's
part to regulate utilizing the current Clean Air Act. As noted
earlier, however, the existing Clean Air Act authorities were
not designed for and are not well-suited to addressing global
pollution problems such as climate change.
---------------------------------------------------------------------------
\6\ See Brief for the Federal Respondent at 32, Massachusetts v.
EPA, 127 S. Ct. 1438 (2007) (No. 05-1120).
---------------------------------------------------------------------------
Thank you for the opportunity to provide this testimony.
----------
Mr. Butterfield. Thank you very much.
Professor.
STATEMENT OF LISA HEINZERLING, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER
Ms. Heinzerling. Thank you, Mr. Chairman and members of the
committee. Thank you for having me here today to testify.
The Clean Air Act as written provides many opportunities
for the regulation of greenhouse gases. I would first urge this
subcommittee not to underestimate the wisdom of previous
Congresses in crafting the Clean Air Act as it exists today.
The Act has proved amenable to dealing with new problems as
science identifies them and has proven remarkably flexible in
developing responses to them. One example of particular
relevance to today's hearing is EPA's exceptional creativity in
confronting the reality of regional pollution problems such as
ozone. It is simply not true that the Act is only serviceable
with respect to strictly local problems.
In addition, I would cite the proud history of dialog and
collaboration between Congress and the EPA in confronting air
pollution problems under the Clean Air Act. From time to time
over the years, up and through especially in 1990, EPA and the
Congress have gone back and forth in a conversation about how
best to deal with air pollution problems under this statute. I
would hope and expect that dialog to continue if EPA did move
forward with regulation under the Act. In that case, EPA could
take a step, Congress could take another, and so on, just as we
have seen for the last decade.
The problem today, as I see it, is that one side, that is,
EPA, is no longer engaged in this conversation. Indeed, it has
stopped talking altogether. It has, we are told by Mr. Meyers
in his testimony this morning, spent $45 billion researching
climate change. It has, we know from this morning's hearing,
actually prepared and written an endangerment finding, and yet
EPA will not release this finding to the American public. The
American public has paid for the findings that have been made
by EPA already, with respect to the effects of greenhouse gases
on public health and welfare. EPA should let those findings be
made public. Again, the American public has paid for them.
The only time it seems EPA actually does speak these days
is to make sure that nothing is done with respect to climate
change. This is true with respect to its denial of California's
waiver and denial of permission to California to regulate
greenhouse gases. It is also true of EPA's approval of the
Bonanza plant in Utah, which has been referenced here already
this morning. Mr. Meyers, in response to questions, said that
the Agency was taking a case-by-case approach to the regulation
of power plants under the Clean Air Act. This is not, strictly
speaking, true. EPA has taken a legal position in that case
that would mean that the case-by-case answer to approvals under
the statute would be yes in every case. That is EPA's legal
position as it exists today.
This morning we have also heard warnings that if EPA does
become reengaged on this topic, we might see society as we know
it collapsing. The fear is that the Clean Air Act as currently
written is a recipe for catastrophe. I believe that is not so
at all. Every provision of the Clean Air Act, every regulatory
provision, save for the National Ambient Air Quality standards,
puts costs front and center in the consideration of standard
setting. Other considerations mentioned here this morning are
also important under various provisions of the Clean Air Act.
Energy impacts, safety impacts, other environmental impacts and
so forth are important under the regulatory provisions of the
Clean Air Act. Previous Congresses, I think, indeed have been
quite prescient in foreseeing the kinds of factors that are
relevant in setting standards under this Act, and I would also
observe that the National Ambient Air Quality Standards, which
we have heard so much about today, do not themselves impose
regulation on any source of pollution. You must use other
provisions of the statute for that, and under those provisions,
economic costs are front and center. In addition, the Clean Air
Act contains numerous escape valves if the kinds of economic
dislocations we have heard about this morning indeed happen.
Those are written into the statute as it exists today.
Moreover, I would say EPA in recent years has shown
considerable interpretative creativity in refusing to regulate
or in justifying more lenient regulation under the Clean Air
Act, indeed, such creativity that sometimes it has proved
illegal, according to the courts. I think if the Agency put
that same kind of creativity to work in actually trying to do
something, in trying to regulate, I think that much would be
possible under the Clean Air Act that would afford effective
and affordable solutions to the problem we face. Thank you very
much.
[The prepared statement of Ms. Heinzerling follows:]
Statement of Lisa Heinzerling
Thank you for the opportunity to testify before you today.
My name is Lisa Heinzerling. I am a Professor of Law at the
Georgetown University Law Center. My expertise is in
environmental and administrative law. Perhaps most pertinent to
today's hearing, I was the lead author of the winning briefs
for Massachusetts and other petitioners in Massachusetts v.
EPA, in which the Supreme Court held that Environmental
Protection Agency has the authority to regulate greenhouse
gases under the Clean Air Act.
In this testimony, I discuss provisions of the Clean Air
Act, as it stands today, which provide authority to regulate
greenhouse gases. I explore the following specific matters:
(1) the statutory triggers that obligate EPA to regulate
under various statutory provisions;
(2) the criteria for setting and implementing standards
under the Clean Air Act's regulatory provisions;
(3) EPA's flexibility to develop a cap-and-trade program
under existing provisions of the Clean Air Act; and
(4) the strengths and weaknesses of relying on the Clean
Air Act as currently constituted to address the problem of
climate change.
Before turning to these issues, I begin with a brief
description of the Supreme Court decision, Massachusetts v.
EPA, which brought us to this point.
Massachusetts v. EPA
In Massachusetts v. EPA, 127 S.Ct. 1438 (2007), the Supreme
Court held that greenhouse gases are ``air pollutants'' within
the meaning of the Clean Air Act and that the Act gives EPA
authority to regulate them. In addition, the Court held that
EPA could not refuse to exercise this authority by citing
policy considerations not enumerated in the statute or by
referring generally to the scientific uncertainty remaining
with respect to climate change.
The Court made several important observations about EPA's
obligations on remand. First, it held that EPA must regulate
greenhouse gases from motor vehicles if the agency finds that
they may reasonably be anticipated to endanger public health or
welfare. (``If EPA makes a finding of endangerment, the Clean
Air Act requires the agency to regulate emissions of the
deleterious pollutant from new motor vehicles.'' 127 S.Ct. at
1462.) Second, to avoid regulating greenhouse gases, EPA must
make one of two findings. Either the agency must find that
greenhouse gases may not reasonably be anticipated to endanger
public health or welfare or it must conclude that there is not
enough information to make a decision on endangerment. (``EPA
can avoid taking further action only if it determines that
greenhouse gases do not contribute to climate change or if it
provides some reasonable explanation as to why it cannot or
will not exercise its discretion to determine whether they do..
If the scientific uncertainty is so profound that it precludes
EPA from making a reasoned judgment as to whether greenhouse
gases contribute to global warming, EPA must say so.. The
statutory question is whether sufficient information exists to
make an endangerment finding.'' 127 S.Ct. at 1462-63.) The
Court's decision in Massachusetts v. EPA thus directs EPA to
follow the scientific evidence on climate change wherever it
leads and to regulate greenhouse gas emissions from motor
vehicles if that scientific evidence shows endangerment.
Massachusetts v. EPA settles three issues of central
relevance to today's hearing: (1) any Clean Air Act provisions
that regulate ``air pollutants'' permit regulation of
greenhouse gases; (2) a finding of ``endangerment'' triggers an
obligate to regulate mobile sources under section 202 of the
Clean Air Act, which, as we shall see, is strikingly similar to
other regulatory provisions of the Act; and (3) EPA may not
sweep aside its obligations under the Clean Air Act by citing
policy concerns not embodied in the statute itself. The latter
course is exactly the one EPA, for now, has chosen. Rather than
dwelling on EPA's current failings, however, I will discuss the
actions a willing EPA could take under the Clean Air Act, right
now, to address climate change.
Regulatory Triggers
The most common trigger for regulation under the Clean Air
Act is a finding of endangerment. However, some important
regulatory provisions have different triggers. The exact
contours of the latter provisions have not yet been resolved.
Cars, fuels, power plants, factories, aircraft, and more are
subject to the provisions triggered by the findings and events
described below.
The Clean Air Act directs EPA Administrator to regulate
numerous sources of air pollution once he has found that an air
pollutant emitted by them may reasonably be anticipated to
endanger public health or welfare. In Massachusetts v. EPA, the
Supreme Court explicitly held that regulation of motor vehicles
under section 202 of the Clean Air Act must follow once the EPA
Administrator makes such an endangerment finding. 127 S.Ct. at
1462. The same is true for many other sources of air pollution.
Section 111(b)(1)(A) of the Clean Air Act, for example,
provides that EPA ``shall'' include on a list a category of
stationary sources ``if in his judgment it causes, or
contributes significantly to, air pollution which may
reasonably be anticipated to endanger public health or
welfare.'' 42 U.S.C. 7411(b)(1)(A). Section 111(b)(1)(B)
requires the Administrator to regulate new sources included on
this list. 42 U.S.C. 7411(b)(1)(B). Section 111(d) requires the
Administrator, acting in concert with the States, to regulate
existing sources included on this list. 42 U.S.C. 7411(d).
There is little doubt that many categories of stationary
sources--including, for example, power plants--emit greenhouse
gases and thus ``cause[]'' air pollution which the
Administrator has concluded endangers public health and
welfare. Under section 111, the Administrator ``shall'' include
these sources on a list and then ``shall'' regulate them. 42
U.S.C. 7411(b)(1)(A), 7411(b)(1)(B), 7411(d).
Regarding power plants specifically, in 2006, EPA refused
to regulate greenhouse gases from electric utility and several
other steam generating units under section 111 because, the
agency explained, ``it does not presently have the authority to
regulate CO2 or other greenhouse gases that contribute to
global climate change.'' 71 Fed. Reg. 9866, 9869. After
Massachusetts v. EPA, this reasoning is no longer legally
valid. The D.C. Circuit has remanded a challenge to EPA's
decision to the agency.
Similarly, section 231(a)(2)(A) provides that the
Administrator ``shall'' issue proposed standards for ``the
emission of any air pollutant from any class or classes of
aircraft engines which in his judgment causes, or contributes
to, air pollution which may reasonably be anticipated to
endanger public health or welfare.'' 42 U.S.C. 7571(a)(2)(A).
Currently pending before EPA are two petitions asking EPA to
regulate greenhouse gas emissions from aircraft. (California
filed one petition, which is available at http://
cdn.sfgate.com/gate/pictures/2007/12/05/ga--aircraftpet6.pdf.
Environmental groups filed another, available at http://
cdn.sfgate.com/gate/pictures/2007/12/05/ga--
aircraftghgpet.pdf.)
Provisions regarding the regulation of fuels (42 U.S.C.
7545(c)(1)(A)) and nonroad engines (42 U.S.C. 7547(a)(4))
provide somewhat more discretion to the Administrator because
they state that he ``may'' rather than ``shall'' regulate after
a finding of endangerment. Nevertheless, the Administrator will
need to take into account a finding of endangerment in
explaining his course of action under these provisions. Here,
too, a petition to regulate greenhouse gases (in this case,
from nonroad engines) awaits a response from EPA. (The petition
is available at http://ag.ca.gov/cms--pdfs/press/N1474--
Petition.pdf.) As the Supreme Court said in Massachusetts v.
EPA, in responding to a petition for rulemaking, the agency's
``reasons for action or inaction must conform to the
authorizing statute,'' and EPA must offer a ``reasoned
explanation'' for its decisions. 127 S.Ct. at 1462, 1463. Thus,
the mere existence of some discretion on the part of EPA,
suggested by the inclusion of the word ``may'' with respect to
regulation of fuels and nonroad engines, does not dilute the
agency's general obligation to follow statutory criteria and
explain its decisions in reasoned terms.
A judgment that an air pollutant may reasonably be
anticipated to endanger public health or welfare is also a
prerequisite to setting a National Ambient Air Quality Standard
(NAAQS) for that pollutant under sections 108 and 109 of the
Act. Two other triggering provisions also apply to the NAAQS:
the pollutant must be emitted by ``numerous or diverse mobile
or stationary sources'' (42 U.S.C. 7408(a)(1)(B)), and the
pollutant must be one either for which air quality criteria
(the scientific documents on which EPA relies in setting the
NAAQS) had been issued when the Clean Air Act was passed on
1970 or for which the Administrator ``plans to issue'' air
quality criteria under section 108. 42 U.S.C. 7408(a)(1)(C).
The latter provision, in particular, may provide the
Administrator somewhat more wiggle room in deciding whether to
issue a NAAQS for a greenhouse gas, even after an endangerment
finding.
Another provision that provides a different trigger for
regulation--a trigger, that is, other than an endangerment
finding--is section 169, concerning the Act's Prevention of
Significant Deterioration (PSD) program. Section 169 requires,
for certain enumerated sources, that ``each pollutant subject
to regulation under this chapter'' be controlled by the ``best
available control technology.'' 42 U.S.C. 7479(3) (emphasis
added). EPA has stated that once greenhouse gases are regulated
under provisions of the Act requiring emissions reductions,
section 169 is triggered and the covered sources must be
regulated. In a case pending before EPA's Environmental Appeals
Board (In the matter of: Deseret Power Electric Cooperative
(Bonanza), PSD Appeal No. 07-03), groups challenging an EPA
decision granting a PSD permit to a coal-fired facility in Utah
argue that greenhouse gases are already ``subject to
regulation'' under the Clean Air Act because section 821
requires the monitoring and reporting of carbon dioxide
emissions. Thus the exact trigger for regulation under section
169 remains unresolved.
Criteria for Setting and Implementing Regulatory Standards
Each of the provisions discussed above also describes the
criteria EPA must use in setting regulatory standards under
these provisions and/or implementing such standards. These
provisions differ slightly in their particulars, but all save
one share a common element: they all direct EPA's attention to
economic costs. See 42 U.S.C. 7478(3) (sources regulated
under PSD program); 42 U.S.C. 7521(a)(2) (mobile sources); 42
U.S.C. 7521(a)(3)(A) (heavy-duty engines); 42 U.S.C.
7545(c)(2)(B) (fuel additives); 42 U.S.C. 7411(a)(1), (b)(1)
(new stationary sources); 42 U.S.C. 7547(a)(3) (nonroad
vehicles); 42 U.S.C. 7571(b) (aircraft). Only the NAAQS are
to be set without reference to the costs of regulation. See
Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001).
Other factors relevant to setting and/or implementing
regulatory standards under the Act include the availability of
control technology (42 U.S.C. 7521(a)(3)(A)(i) (mobile
sources), 42 U.S.C. 7523(a)(4) (nonroad engines and
vehicles)); energy impacts (see, e.g., 42 U.S.C.
7521(a)(3)(A) (heavy-duty engines)); the health and welfare
effects of product substitutes (42 U.S.C. 7545(c)(2)(C)
(fuels and fuel additives)); effects on safety (42 U.S.C.
7521(a)(4) (mobile sources), 42 U.S.C. 7547(a)(4) (nonroad
engines and vehicles)); and noise (42 U.S.C. 7547(a)(4)
(nonroad engines and vehicles)). The exact mix of the factors
that EPA must consider in setting or implementing standards
differs, obviously, from source to source.
EPA's Flexibility in Setting and Implementing Standards
Especially pertinent to today's hearing is the question of
how much flexibility EPA is afforded in setting and
implementing standards under the Clean Air Act. In particular,
could EPA regulate greenhouse gases through a cap-and-trade
program set up under the current Act? The answer is not
straightforward; it depends on the specific text and structure
of the relevant provision. From the outset, however, one
generalization is possible: the regulatory provisions of the
Clean Air Act appear, for the most part, not to have been
written with a cap-and-trade program in mind. Developing a cap-
and-trade program under these provisions would thus, at the
very least, require a good bit of interpretive creativity.
I will start by discussing the mobile source program at
issue in Massachusetts v. EPA. Section 202 of the Act directs
the Administrator, upon a finding of endangerment, to
``prescribe . standards applicable to the emission of any air
pollutant from any class or classes of new motor vehicles or
new motor vehicle engines.'' 42 U.S.C. 7521(a)(1). On its
own, this directive does not appear to limit EPA's authority to
regulate automobiles through use of a cap-and-trade program,
whether applicable only to the automobile industry or to a more
general category of sources. However, section 202 goes on to
state that the mobile source standards ``shall be applicable to
such vehicles and engines for their useful life . whether such
vehicles and engines are designed as complete systems or
incorporate devices to prevent or control such pollution.'' 42
U.S.C. 7521(a)(1). This requirement appears to imply that the
pollution from each individual vehicle or engine must be
separately controlled, either through a ``complete system'' or
through a ``device.'' A cap-and-trade system does not ensure
this result.
Turning to fuels, section 211 of the Act gives EPA the
authority to ``control or prohibit'' a fuel or fuel additive
under certain conditions. 42 U.S.C. 7545(c). This provision
does not appear to curtail EPA's authority to ``control'' fuels
or fuel additives through a trading program.
For nonroad engines and vehicles, Congress has given EPA
the authority to issue ``such regulations as the Administrator
deems appropriate containing standards applicable to emissions
from those classes or categories of new nonroad engines and new
nonroad vehicles'' meeting the endangerment threshold. 42
U.S.C. 7547(a)(4). Congress premised these standards on the
existence of pollution control technology, instructing EPA to
consider certain factors ``associated with the application of
technology which the Administrator determines will be available
for the engines and vehicles to which such standards apply.''
42 U.S.C. 7547(a)(4). Yet Congress did not expressly instruct
EPA to require the use of any particular technology in its
standards for nonroad engines and vehicles. Nor did Congress
strongly imply, as it did with respect to mobile sources under
section 202, that the pollution from each individual source
(each nonroad engine or vehicle) must be controlled. Congress
did require (as it had with respect to mobile sources) that the
standards for new nonroad engines and vehicles apply ``to the
useful life of the engines or vehicles,'' 42 U.S.C.
7547(a)(4), which might be taken to suggest that Congress had
in mind standards that would apply separately to each engine or
vehicle, and not an overarching cap-and-trade program that
might leave some individual engines or vehicles unchanged by
the regulatory framework.
For the specific class of nonroad engines and vehicles that
includes locomotives and engines used in locomotives, Congress
directed that EPA issue regulations reflecting ``the greatest
degree of emission reduction achievable through the application
of technology which the Administrator determines will be
available for the locomotives and engines to which such
standards apply,'' taking into account several factors
including cost. 42 U.S.C. 7547(a)(5). Here, if EPA wanted to
bring these sources into a cap-and-trade program, it would be
required, at the very least, to ensure that the program's cap
reflected ``the greatest degree of emission reduction
achievable'' from available control technology for these
sources. Showing that a cap-and-trade program applicable to a
broad category of sources, beyond only locomotives, satisfied
this stringent criterion might be difficult.
As to standards for aircraft, the Act speaks in terms of
``emission standards'' applicable to ``any class or classes of
aircraft engines.'' 42 U.S.C. 7571(a)(2)(A). While EPA must
study the ``technological feasibility'' of controlling aircraft
emissions, 42 U.S.C. 7571(a)(1)(B), the Act does not
expressly require EPA to impose specific technological
requirements on each individual airplane. Nevertheless, the use
of the term ``emission standards'' in this section invites
reference to the definition of this phrase in section 302 of
the Act. There, the Act defines ``emission standards'' as ``a
requirement established by . the Administrator which limits the
quantity, rate, or concentration of emissions of air pollutants
on a continuous basis, including any requirement relating to
the operation or maintenance of a source to assure continuous
emission reduction, and any design, equipment, work practice or
operational standard promulgated under this chapter.'' 42
U.S.C. 7601(k). The cap set by a cap-and-trade program, and
the requirement that individual sources hold allowances that
reflect their own emissions, fits awkwardly, at best, into this
provision. Perhaps such requirements could be viewed as
``operational standards,'' but to the extent this latter term
is given meaning by the words around it--``design, equipment,
work practice'' standard--it does not appear naturally to refer
to the kinds of strictures imposed by a cap-and-trade program.
The possibility of using a cap-and-trade program to
regulate stationary sources under section 111 is even shakier.
Although EPA asserted the power to create a cap-and-trade
program for mercury under section 111, see 70 Fed. Reg. 28606,
EPA's entire mercury rule was recently invalidated by the D.C.
Circuit due to EPA's failure to follow the proper procedures in
delisting mercury as a hazardous air pollutant under section
112 of the Act. New Jersey v. EPA, 2008 U.S. App. LEXIS 2797
(2008). The court did not decide whether EPA had lawfully
interpreted section 111(d) to permit the creation of a cap-and-
trade scheme for existing electricity generating units. EPA had
argued that section 111(d)(1) authorized the agency to issue
rules creating a state-initiated framework under which each
state would submit to EPA a plan that ``establishes standards
of performance for any existing source'' for certain air
pollutants. 42 U.S.C. 7411(d)(1). Section 111(a) defines,
``(f)or purposes of . section (111),'' the term ``standard of
performance'' to mean ``a standard for emissions of air
pollutants which reflects the degree of emission limitation
achievable through the application of the best system of
emission reduction which (taking into account the cost of
achieving such reduction and any non-air quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated.'' 42 U.S.C.
7411(a)(1). In creating a cap-and-trade scheme for mercury
under section 111, EPA argued as follows:
A cap-and-trade program reduces the overall amount of emissions
by requiring sources to hold allowances to cover their
emissions on a one-for-one basis; by limiting overall
allowances so that they cannot exceed specified levels (the
``cap''); and by reducing the cap to less than the amount of
emissions actually emitted, or allowed to be emitted, at the
start of the program.. Authorizing the allowances to be traded
maximizes the cost-effectiveness of the emissions reductions in
accordance with market forces. Sources have an incentive to
endeavor to reduce their emissions cost-effectively; if they
can reduce emissions below the number of allowances they
receive, they may then sell their excess allowances on the open
market.
The term ``standard of performance'' is not explicitly defined
to include or exclude an emissions cap and allowance trading
program. EPA interprets the term ``standard of performance,''
as applied to existing sources, to include a cap-and-trade
program. This interpretation is supported by a careful reading
of the section 111(a) definition of the term, quoted above: A
requirement for a cap-and-trade program (i) constitutes a
``standard for emissions of air pollutants'' (i.e., a rule for
air emissions), (ii) ``which reflects the degree of emission
limitation achievable'' (i.e., which requires an amount of
emissions reductions that can be achieved), (iii) ``through
application of (a) . system of emission reduction'' (i.e., in
this case, a cap-and-trade program that caps allowances at a
level lower than current emissions).
Numerous parties have argued that section 111 does not
authorize the creation of a cap-and-trade program. Among other
things, section 111(h) provides a contingency plan in the event
performance standards are ``not feasible'' to implement. In
that case, section 111(h) gives EPA the authority to
``promulgate a design, equipment, work practice, or operational
standard, or combination thereof, which reflects the best
technological system of continuous emissions reduction which .
the Administrator determines has been adequately
demonstrated.'' 42 U.S.C. 7411(h)(1). One of the ways a
performance standard might prove ``not feasible'' is if ``a
pollutant or pollutants cannot be emitted through a conveyance
designed and constructed to emit or capture such pollutants.''
42 U.S.C. 7411(h)(2)(A). Clearly, Congress thought the most
likely scenario under section 111 was for pollutants to be
``emitted through a conveyance designed and constructed to emit
or capture such pollutant[s]''--an assumption at odds with the
operation of a trading program. Other aspects of section 111
also point away from the creation of a trading program under
this provision. (For more details, see Lisa Heinzerling and
Rena I. Steinzor, A Perfect Storm: Mercury and the Bush
Administration, 34 ENVTL. L. REP. 10297, 10309 (April 2004).)
Creating a cap-and-trade program for stationary sources
subject to the PSD program might prove even trickier. Section
165(a)(4) requires that each facility covered by PSD
requirements be ``subject to the best available control
technology for each pollutant subject to regulation under this
chapter emitted from, or which results from, such facility.''
42 U.S.C. 7475(a)(4). This provision appears to require
individual, technology-based requirements for each individual
facility, a requirement in considerable tension with a cap-and-
trade scheme.
Developing a cap-and-trade scheme under any one of the
provisions discussed above is also complicated by the explicit
approval, in some Clean Air Act provisions, of a trading
scheme. The best-known of these is the national cap-and-trade
scheme created by Subchapter IV to deal with acid deposition.
Less well known is the explicit approval of trading regimes for
state programs aimed at achieving the NAAQS. 42 U.S.C.
7410(a)(2)(A). Both provisions might suggest a negative
inference with respect to trading under other parts of the Act:
because these provisions explicitly permit emissions trading,
it might be argued that the provisions that do not mention
trading do not allow it.
Cutting in the other direction, administrative agencies,
including EPA, have considerable discretion not only in
interpreting less than crystalline statutory mandates, but also
in deciding how they will enforce them. One possibility,
offered in California's petition to EPA asking the agency to
regulate greenhouse gas emissions from aircraft, would be to
adopt a trading regime as part of an overall enforcement
strategy for greenhouse gas emissions.
Given that EPA has offered no program whatsoever to address
greenhouse gases, much less a program with a fully developed
cap-and-trade plan, these comments on the potential lawfulness
of a trading program under various provisions of the Clean Air
Act are necessarily hypothetical and preliminary. Nevertheless,
they do suggest that EPA will face some tough interpretive
choices in designing a regulatory program to address greenhouse
gases under the Act as it currently exists.
Strengths and Weaknesses of Relying on Clean Air Act to Address Climate
Change
As is evident by now, the Clean Air Act contains numerous
provisions that might be used to regulate greenhouse gases. The
advantages of using these provisions include: they can be
deployed now; they use regulatory strategies that are familiar
to, indeed are the bread and butter work of, the Environmental
Protection Agency; they call for regulation of numerous and
diverse sources and thus, taken as a group, they have an
inherent fairness to them; they do not pose unusual enforcement
difficulties or untoward administrative burdens.
There are also disadvantages to using existing Clean Air
Act provisions to address climate change. Most of the
provisions do not have statutory deadlines, which makes their
implementation captive (as we are now seeing) to an unwilling
executive agency. To the extent one favors cap-and-trade as a
regulatory mechanism for addressing climate change, one might
worry about the lack of clear authority for such a scheme under
the existing statute. The NAAQS program is an ungainly
framework for regulating globally harmful pollutants. PSD
requirements are triggered for sources that are ``large'' when
it comes to conventional pollution but ``small'' from the
perspective of global pollutants.
Put simply, the Clean Air Act is an excellent off-the-rack
garment for greenhouse gas regulation, but it may be that
Congress wants a more tailored fit.
----------
Mr. Butterfield. Thank you very much. We are on a tight
leash so I am going to have to move right along.
Mr. Glaser, we are watching the Floor and we are getting
close on votes so you have 5 minutes.
STATEMENT OF PETER GLASER, PARTNER, TROUTMAN SANDERS LLP
Mr. Glaser. Thank you. My name is Mr. Glaser and I
appreciate the opportunity to present this testimony. Let me
begin by stating that I am not here before the Committee
representing or advocating the position of any particular
company or industry, and the views expressed in my testimony
are my own and not necessarily those of any company or group
that I currently represent or have represented.
As requested by the Committee, my testimony today
identifies the sections of the Clean Air Act that might be
applied to regulate greenhouse gases and for each such section
I describe the triggers for regulatory action, the types of
sources that could be regulated, the factors that EPA could
consider in regulation, and the amount of flexibility that EPA
could provide sources. My testimony also describes the
weaknesses of the Act as a vehicle for greenhouse gas
regulation. I see no strengths.
First, the Clean Air Act has no global reach or interface.
No opportunity exists within the statute to utilize
international offsets or credits or to coordinate a domestic
response with that of other countries. Yet greenhouse gases
poses a global issue that must be addressed in a global
context.
Second, the statute's central regulatory program, the NAAQS
program, is untenable in controlling greenhouse gas emissions,
as we have heard. Applying the NAAQS program to greenhouse
gases, EPA would be required to develop greenhouse gas
standards requisite to protect the public health and welfare
without considering the cost of attainment, and States would be
required to adopt measures to attain or maintain the NAAQS, yet
the States would be essentially powerless to affect greenhouse
gas concentrations within their borders. Could EPA elect not to
do a NAAQS program for greenhouse gases if it regulates
greenhouse gases, as Mr. Doniger says? I hope so, but
Massachusetts and two other States several years ago brought a
lawsuit to compel EPA to establish NAAQS for greenhouse gases,
arguing that EPA had a mandatory duty to do so, and that
lawsuit was only withdrawn after EPA denied the ICTA petition
that led to the Massachusetts v. EPA litigation.
The third weakness I see in the Clean Air Act is that cap-
and-trade opportunities are limited under the statute. Section
111, NSPS, was mentioned as one possible source of authority.
Unfortunately, the environmental parties in the context of the
Clean Air Mercury Rule argued in court that no such authority
existed.
Fourth, we are likely to end up with inflexible command-
and-control regulation under the statute. Most of the Clean Air
Act provisions discussed in all the witnesses' testimony set
forth command-and-control regulation. Opportunities to be more
flexible are going to be limited.
Fifth, greenhouse gas regulation under the Clean Air Act
would produce uncertain results because many Clean Air Act
regulatory standards such as BACT or NSPS require consideration
of technical feasibility. Clean Air Act regulation may not
result in significant near-term greenhouse gas emissions
reductions. Some may argue that at the present time zero
controls represent the most appropriate BACT and NSPS level for
certain source categories.
Sixth, Clean Air Act regulation will cause a disaster under
the Prevention of Significant Deterioration program. Likely
several hundred thousand small, previously unregulated sources
will be subjected to the program, disincenting investment and
clogging the regulatory process. This is not a question of what
Mr. Doniger's clients or any other environmental organizations
want or don't want to see enforced. Unfortunately, the law says
if you emit more than 250 tons per year of a regulated
pollutant, you must get a permit.
Seventh and last, the Clean Air Act will lead to years, if
not decades, of regulatory agony. For instance, courts have
ruled that establishment of New Source Performance Standards
require the functional equivalent of an environmental impact
statement. Attempting to set performance standards for all
greenhouse gas-emitting sources under section 111 and under
other Clean Air Act programs will lead to a series of source-
by-source, hugely cost-ineffective, time-consuming,
controversial, difficult, and ultimately litigated rulemaking
proceedings.
Finally, my friend, Professor Heinzerling, states that
while greenhouse gas regulation under the Act may not be a
tailored fit but it is a good enough off-the-rack solution. I
would say that the better sartorial analogy is that greenhouse
gas regulation under the Act would be a regulatory
straitjacket. I appreciate Mr. Doniger's statement that his
clients are only after the big emitters, but Clean Air Act
regulation would tie up within its grasp hundreds of thousands
of little sources. It may very well trigger untenable NAAQS
regulation and it is unlikely to lead to inflexible and not
market-based solutions.
Thank you.
[The prepared statement of Mr. Glaser follows:]
[GRAPHIC] [TIFF OMITTED] T1574.052
[GRAPHIC] [TIFF OMITTED] T1574.053
[GRAPHIC] [TIFF OMITTED] T1574.054
[GRAPHIC] [TIFF OMITTED] T1574.055
[GRAPHIC] [TIFF OMITTED] T1574.056
[GRAPHIC] [TIFF OMITTED] T1574.057
[GRAPHIC] [TIFF OMITTED] T1574.058
[GRAPHIC] [TIFF OMITTED] T1574.059
[GRAPHIC] [TIFF OMITTED] T1574.060
[GRAPHIC] [TIFF OMITTED] T1574.061
[GRAPHIC] [TIFF OMITTED] T1574.062
[GRAPHIC] [TIFF OMITTED] T1574.063
[GRAPHIC] [TIFF OMITTED] T1574.064
[GRAPHIC] [TIFF OMITTED] T1574.065
[GRAPHIC] [TIFF OMITTED] T1574.066
[GRAPHIC] [TIFF OMITTED] T1574.067
[GRAPHIC] [TIFF OMITTED] T1574.068
[GRAPHIC] [TIFF OMITTED] T1574.069
[GRAPHIC] [TIFF OMITTED] T1574.070
[GRAPHIC] [TIFF OMITTED] T1574.071
[GRAPHIC] [TIFF OMITTED] T1574.072
[GRAPHIC] [TIFF OMITTED] T1574.073
Mr. Butterfield. Thank you very much.
We are going to have a few minutes for questions. Mr.
Shimkus, would you like to ask any questions of the witnesses?
Mr. Shimkus. Yes, I would, Mr. Chairman.
Mr. Butterfield. All right. You may proceed, 5 minutes.
Mr. Shimkus. Let me ask just the basic original question to
the panel. Will regulating carbon dioxide cost more to the
consumer, yes or no? Mr. Doniger?
Mr. Doniger. In some cases, yes, and in some cases, it will
save money.
Mr. Shimkus. I don't believe you. I don't.
Mr. Ludwiszewski?
Mr. Ludwiszewski. I would say almost certainly it will cost
more.
Mr. Shimkus. I would agree.
Ms. Heinzerling?
Ms. Heinzerling. I agree with Mr. Doniger.
Mr. Shimkus. And Mr. Glaser?
Mr. Glaser. The answer is definitely yes.
Mr. Shimkus. The answer is definitely yes. Thank you very
much.
Mr. Doniger. Mr. Shimkus, may I----
Mr. Shimkus. No, it is my time.
Mr. Doniger. For the record----
Mr. Shimkus. No, sir. Sir, it is my time.
Mr. Doniger. A study----
Mr. Shimkus. Sir, it is my time. But I will ask the NRDC
position on nuclear power, being that it is known to be not a
carbon emission. The reality is this. We are going to increase
electricity demand by 30 percent in this country in the next 30
years. Does everybody agree with that? That is the Energy
Information Agency analysis. You don't agree with that?
Mr. Doniger. No.
Mr. Shimkus. Okay.
Mr. Doniger. Energy service demand but not energy demand.
Mr. Shimkus. I have a son who is 15 years old and who I
love dearly. I went downstairs--I told this story many times.
He is working on a laptop, he is watching cable TV and
listening to iPod music all at the same time, tripling the use
of electricity in one individual and dealing his neurons a blow
that I can't even imagine. Most of us believe electricity
demand is increasing and will continue to increase 30 percent
by 2030. Fifty percent of the electricity that we produce today
is by coal, 20 percent by nuclear, 19 percent by hydroelectric,
and so a lot of us are frustrated with the fact that no one
wants to consider the possibility of increased costs.
Ms. Heinzerling, you addressed that the Clean Air Act had
no economic catastrophic occurrences and that the economy was
considered in this. Well, I will invite you to southern
Illinois, where the coal mining industry was destroyed, where
small towns shut their doors, where family restaurants closed,
and I went to the rallies, save the mines, save the mine
workers' jobs. The mine in Kincaid, Illinois, closed. The
United Mine Workers a week later had a rally in the Christian
County Fairground, save our jobs. So don't come and tell me
that our approach to climate change is not going to cost jobs
in this country. It is going to cost a tremendous amount of
jobs, and that is okay. The only one who is intellectually
honest in this debate, as I said in my opening statement, is
John Dingell. John Dingell says it is going to cost us money,
we have to pay for it, so consumers who are driving, we need to
put a 50-cent tax on motor fuels, mobile source of emissions,
whatever gimmick we use for the consumer not to understand that
costs are going to incur by climate change. Cap and trade is a
gimmick. It is a gimmick to protect politicians from the real
debate of what we need to address.
If we are going to address, Mr. Chairman, climate change,
it is going to cost money, and that money has to come from
somewhere. And so let us be up front with it. Your position
ought to be carbon tax, let us tax the single source polluter,
let us tax the mobile emitter, let us take that revenue, let us
do CCS, carbon capture sequestration. That is clear, easy,
understandable, but no, we are going to go on this paradigm of
some type of cap-and-trade system that has failed in Europe and
we are not going to be able to bring--we are going to have all
pain and no gain, because I sat and the chairman of this
committee was in the meeting with Chinese officials and they
laughed at us when we asked them if they were going to go until
some international climate change accord, and their answer was,
you all had 200 years to develop your middle class using fossil
fuels, it is our turn now. It doesn't sound like they are going
to be great stewards of climate change debate so the public
needs to understand, if we are going to do it, let us do it,
let us put the tax down, let us let people know what they are
going to pay for and then let us move the country forward.
Thank you, Mr. Chairman. I yield back my time.
Mr. Butterfield. Thank you. That is perfect timing. That is
not my buzzer. That is the Speaker's buzzer.
All right. I am going to seek unanimous consent to have 5
legislative days for all members to submit written questions to
the witnesses. We are going to have to go to the Floor and I am
told that this is going to be a disjointed afternoon and so
likely we will not be able to return. So members will have 5
legislative days to submit written questions.
I thank each one of you for your testimony today. This is
an active debate that is ongoing and we look forward to your
participation in the future.
The committee is in recess.
[Whereupon, at 1:26 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHIC] [TIFF OMITTED] T1574.020
[GRAPHIC] [TIFF OMITTED] T1574.021
[GRAPHIC] [TIFF OMITTED] T1574.022
[GRAPHIC] [TIFF OMITTED] T1574.023
[GRAPHIC] [TIFF OMITTED] T1574.024
[GRAPHIC] [TIFF OMITTED] T1574.025
[GRAPHIC] [TIFF OMITTED] T1574.026
[GRAPHIC] [TIFF OMITTED] T1574.027
[GRAPHIC] [TIFF OMITTED] T1574.028
[GRAPHIC] [TIFF OMITTED] T1574.029
David D. Doniger, Responses to Submitted Questions from Mr. Butterfield
1. Mr. Doniger, you raise the issue of EPA avoiding to make
an endangerment determination to rule CO2 emissions
from automobiles as a pollutant. Can you describe the
``stalling tactics'' used by the Administration in further
detail?
The principal stalling tactic being used by the
administration to delay action under the Clean Air Act is the
announced plan for EPA to issue an ``advance notice of proposed
rulemaking'' (ANPR). We understand that the ANPR may appear on
June 21st. The issuance of an ANPR, instead of an endangerment
determination or a proposed rulemaking, is a deliberate tactic
to avoid complying with the Supreme Court decision in
Massachusetts v. EPA, 127 S.Ct. 1438 (2007).
The high court's decision requires EPA to determine whether
the greenhouse gas air pollutants emitted by motor vehicles
``may reasonably be anticipated to endanger public health or
welfare.'' (As I explained in my testimony, under the Clean Air
Act the term ``welfare'' expressly includes adverse effects on
the ``climate.'') The Supreme Court precisely delineated the
range of EPA's options on remand. EPA must decide ``whether an
air pollutant `cause[s], or contribute[s] to, air pollution
which may reasonably be anticipated to endanger public health
or welfare,''' 127 S. Ct. at 1462. Thus, ``[t]he statutory
question is whether sufficient information exists to make an
endangerment finding.'' The Court limited EPA to three possible
answers to that question: yes, no, or insufficient information.
EPA's answer, the Court made clear, must be based solely on the
science. Id. at 1462-63.
An investigation conducted by the House Committee on
Oversight and Government Reform has established that EPA had in
fact completed the drafting an affirmative endangerment
determination during fall 2007. See Letter from Chairman Henry
A. Waxman to EPA Administrator Stephen L. Johnson dated March
12, 2008, at 3-6, available at http://oversight.house.gov/
documents/20080312110250.pdf. The Oversight Committee
investigation established that the Administrator himself
approved the affirmative determination and that in early
December 2007 EPA transmitted a fully-drafted Federal Register
notice announcing the affirmative endangerment determination to
the White House Office of Management and Budget, where it
apparently still sits. Id. at 5-6. In addition, EPA had
completed an extensive scientific review document in support of
the endangerment determination. Id., at 3-5. The Oversight
Committee investigation found that work regarding the
endangerment determination stopped once the proposed
determination was sent to the White House. Id. at 7.
Acting on the White House's instructions, the Administrator
abandoned work on the endangerment determination and
subsequently announced plans for the ANPR. The ANPR will only
duck the determination required under Massachusetts. It will
ask for yet another round of comment on science issues and on
other ``policy'' issues that the Supreme Court has determined
have no relevance to the science-based endangerment decision
required under the Clean Air Act.
Administrator Stephen Johnson has been more than plain that
he does not intend to make the endangerment determination
required by the Supreme Court during his tenure. On May 19,
2008, Administrator Johnson ``told reporters at a meeting at
Platts Energy Podium, a McGraw-Hill-sponsored presentation for
reporters on energy issues, that `as a practical matter' it
will be up to the next administration to determine whether
carbon dioxide endangers public health because of its
contribution to global warming.'' See J. Eilperin, ``White
House Role Cited in EPA Reversal on Emissions,'' Washington
Post, p. A06 (May 20, 2008).
The Administrator's solicitation of more scientific comment
is completely at odds with his own published decision earlier
this year stating his affirmative conclusions regarding the
adverse effects of greenhouse gas emissions. In a Federal
Register notice published on March 6, 2008 (73 Fed. Reg. 12,156
(March 6, 2008)), the Administrator endorsed the conclusion of
the International Panel on Climate Change (IPCC) that global
warming ``is unequivocal and is now evident from observations
of increases in global average air and ocean temperatures,
widespread melting of snow and ice, and rising global sea
level.'' 73 Fed. Reg. 12,165, citing the IPCC Summary for
Policymakers (2007). He also said: ``It is widely recognized
that greenhouse gases have a climatic warming effect.. Most of
the observed increase in global average temperatures since the
mid-20th century is very likely [an IPCC term of art meaning
90-99% likely] due to the observed increase in anthropogenic
GHG concentrations.'' Id. at 12,165. The Administrator also
catalogued the diverse dangers that such warming will pose to
public health and welfare. For example, the Administrator
specifically found that ``[s]evere heat waves are projected to
intensify in magnitude and duration over portions of the U.S.
where these events already occur, with likely increases in
mortality and morbidity, especially among the elderly, young,
and frail.'' Id. at 12,167.
The State and environmental petitioners in Massachusetts v.
EPA have no choice but to return to court to seek judicial
enforcement of the Supreme Court's decision. We filed a
petition for a writ of mandamus on April 2, 2008, the
anniversary of the Supreme Court's decision. The U.S. Court of
Appeals for the District of Columbia Circuit (the court with
current responsibility for the case) ordered the EPA to respond
and explain its delay. We subsequently submitted a reply, and
we await the court's ruling. If the D.C. Circuit orders EPA to
make the endangerment determination in conformity with the
Supreme Court's decision, EPA may finally be held to account.
2. Secondly, how quickly could the next Administration (in
January 2009) move past the EPA soliciting public input via
ANPRs?
The new administration could act immediately under the
Clean Air Act to issue the endangerment determination. Such
action could be taken immediately because, as explained in my
testimony and in the answer to the previous question, all the
work on the endangerment issue has already been completed. A
fully-drafted EPA endangerment determination sits at the Office
of Management and Budget. A complete scientific support
document has also been prepared.
The new administration could also issue almost immediately
proposed emission standards for new vehicles (which EPA also
had drafted before work was stopped last year) and with
proposed new source performance standards for new power plants
and other major industries that emit carbon dioxide and other
greenhouse gases.
As I explained in my testimony, it is completely practical
to regulate greenhouse gas pollutants from these sources
through a variety of Clean Air Act authorities pertaining to
mobile and stationary sources. Through these authorities, EPA
could set performance standards for global warming pollution
from the vast majority of U.S. emissions sources. Electric
power plants, for example, represent 40 percent of U.S. CO2
emissions and could be regulated under Section 111. Other major
industrial sources subject to Section 111 account for another
20 percent or so of these emissions. Motor vehicles and their
fuels represent another 20 percent of U.S. CO2 emissions and
could be regulated under Sections 202 and 211.
[GRAPHIC] [TIFF OMITTED] T1574.110
[GRAPHIC] [TIFF OMITTED] T1574.074
[GRAPHIC] [TIFF OMITTED] T1574.075
[GRAPHIC] [TIFF OMITTED] T1574.076
[GRAPHIC] [TIFF OMITTED] T1574.077
[GRAPHIC] [TIFF OMITTED] T1574.078
[GRAPHIC] [TIFF OMITTED] T1574.079
[GRAPHIC] [TIFF OMITTED] T1574.080
[GRAPHIC] [TIFF OMITTED] T1574.081
[GRAPHIC] [TIFF OMITTED] T1574.082
[GRAPHIC] [TIFF OMITTED] T1574.083
[GRAPHIC] [TIFF OMITTED] T1574.084
[GRAPHIC] [TIFF OMITTED] T1574.085
[GRAPHIC] [TIFF OMITTED] T1574.086
[GRAPHIC] [TIFF OMITTED] T1574.087
[GRAPHIC] [TIFF OMITTED] T1574.088
[GRAPHIC] [TIFF OMITTED] T1574.089
[GRAPHIC] [TIFF OMITTED] T1574.090
[GRAPHIC] [TIFF OMITTED] T1574.091
[GRAPHIC] [TIFF OMITTED] T1574.092
[GRAPHIC] [TIFF OMITTED] T1574.093
[GRAPHIC] [TIFF OMITTED] T1574.094
[GRAPHIC] [TIFF OMITTED] T1574.095
[GRAPHIC] [TIFF OMITTED] T1574.096
[GRAPHIC] [TIFF OMITTED] T1574.097
[GRAPHIC] [TIFF OMITTED] T1574.098
[GRAPHIC] [TIFF OMITTED] T1574.099
[GRAPHIC] [TIFF OMITTED] T1574.100
[GRAPHIC] [TIFF OMITTED] T1574.101
[GRAPHIC] [TIFF OMITTED] T1574.102
[GRAPHIC] [TIFF OMITTED] T1574.103
[GRAPHIC] [TIFF OMITTED] T1574.104
[GRAPHIC] [TIFF OMITTED] T1574.105
[GRAPHIC] [TIFF OMITTED] T1574.106
[GRAPHIC] [TIFF OMITTED] T1574.107
[GRAPHIC] [TIFF OMITTED] T1574.108
[GRAPHIC] [TIFF OMITTED] T1574.109