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Indiana University

SPEA Experts Comment on EPA Ruling

April 29, 2009
Friday, April 17, 2009

EPA to regulate greenhouse gases: Indiana University experts comment

EDITORS: The U.S. Environmental Protection Agency announced today (April 17) that it intends to regulate carbon dioxide and other greenhouse gases under the Clean Air Act. Faculty experts at Indiana University express different reactions but agree that the decision could and should put pressure on Congress to take action on greenhouse gases.

A legally well-founded and appropriate move

Professor A. James Barnes, former deputy administrator and general counsel to the EPA, says the decision is a good one. "I think it is a welcome, legally well-founded and appropriate move as a matter of policy on EPA's part," he said. "While Congress did not focus on greenhouse gas pollutants when it crafted the Clean Air Act in 1970, it is clear, nonetheless, that the greenhouse gases meet the definition of air pollutant in the Act." Barnes, a professor and former dean of the IU School of Public and Environmental Affairs and an adjunct professor in the IU Maurer School of Law, noted that the Clinton Administration concluded that the EPA had the authority to address greenhouse pollutants, but the Bush Administration reversed that position and declined to take action to regulate them. Two years ago, the Supreme Court, in Massachusetts v. EPA, told the EPA it did have that authority and that it should reconsider regulating greenhouse gas emissions from motor vehicles. Barnes said that while it still would be several years before any such controls could be put in place on automobiles, the EPA decision could bolster efforts to prompt Congress to approve cap-and-trade legislation to limit carbon dioxide emissions from stationary sources, such as coal-burning power plants. Industry has expressed understandable opposition to piecemeal regulation, he said. "The fact that EPA is now on a track to go forward with some regulation under the current law, I think, really ups the ante for Congress to address the issue in a comprehensive fashion."

James A. Barnes served as EPA deputy administrator from 1985-88 and general counsel from 1983-85. In the early 1970s, he participated in the formation of EPA and served as the chief of staff to its first administrator, William D. Ruckelshaus. He can be reached at 812-856-2188 or barnesaj@indiana.edu or through Steve Hinnefeld with University Communications at 812-856-3488 or slhinnef@indiana.edu.

What is needed is a legislative response

Kenneth R. Richards, associate professor in the School of Public and Environmental Affairs, says the EPA decision takes a regulatory approach to what should be a congressional decision. "As regulation goes this is a very bad move. It is a solution only a lawyer could love," he said. "As politics goes, it might be OK, forcing Congress to do the smart thing -- i.e., pass comprehensive climate legislation." Richards said the EPA decision may be genuinely motivated by the Supreme Court decision in Massachusetts v. EPA, or it may be an attempt to pressure Congress. "Either way, what is needed is a legislative response." He said the Clean Air Act was not developed to deal with global pollutants or ones that permeate every sector of the economy, and efficient regulation of greenhouse gases under the Act will be impossible. "This will lead to balkanized approaches, ones that cannot possibly lead to a system where the lowest-cost emission controls are allowed to surface." The question may be moot, however, because it will take months or years before EPA can complete the rulemaking process. "If Congress shows even a little bit of leadership," Richards said, "we will have a new climate change law before anything can make its way through to a final rule."

Kenneth R. Richards is associate director of the Center for Research in Energy and the Environment at Indiana University. His research interests include climate change policy, policy implementation and carbon sequestration. Richards can be reached at 812-855-5971 or kenricha@indiana.edu or through Steve Hinnefeld at University Communications, 812-856-3488 or slhinnef@indiana.edu.