[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


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                    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:]

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    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:]

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    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:]

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    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:]

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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. 

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