CO2: A POLLUTANT?

THE LEGAL AFFAIRS COMMITTEE REPORT TO THE NATIONAL MINING ASSOCIATION BOARD OF DIRECTORS ON THE AUTHORITY OF EPA TO REGULATE CARBON DIOXIDE UNDER THE CLEAN AIR ACT

Fredrick D. Palmer
Chairman, Legal Affairs Committee

Peter Glaser
Barbara Van Zomeren
Doherty, Rumble & Butler, PA
1401 New York Avenue, N.W.

Harold P. Quinn, Jr.
Sr. Vice President & General Counsel

Bradford V. Frisby
Assistant General Counsel
National Mining Association
Washington, D.C.

PREFACE

Fear of apocalyptic global warming centers on an increasing atmospheric concentration of carbon dioxide (CO2) due to human activity. The United Nations' voluntary Framework Convention on Climate Change (the Rio Treaty) seeks to prevent "dangerous human interference" with climate. A successor treaty negotiated at the meeting in Kyoto, Japan in December 1997 (the Kyoto Protocol) would place the responsibility on developed nations to substantially cut their greenhouse gas emissions. What is really at issue in this debate is human reliance on carbon fuels as our primary source of energy.

Of course, the economic consequences are enormous for those countries who truly pursue the commitments established in Kyoto. The reduction of greenhouse gases means substantial constraints on economic prosperity -- including, perhaps, reducing income, employment and output. These dire economic realities no doubt explain the administration's reluctance to inform the American people of the sacrifices they would be called upon to make in order to fulfill the commitments made by U.S. negotiators in Kyoto. No less daunting is the task of explaining to Americans why they must accept such wrenching changes to their well-being when the evidence does not show that the increase in CO2 levels attributed to human activity is responsible for a measured rise in global temperature, or, for that matter, that a warmer climate, if it did occur, poses the threat of an environmental catastrophe.

These realities pose substantial obstacles to both public and political acceptance of the Kyoto commitments. Notably, the administration has not submitted the Protocol to the Senate for ratification and, apparently, it has no plans to do so any time soon. Yet, the absence of this constitutional prerequisite to implementation has not deterred others in the administration from suggesting the (ab)use of administrative powers in order to secure the greenhouse gas emission cuts they agreed to in Kyoto.

Perhaps the most stunning suggestion in this regard is the Environmental Protection Agency's (EPA) claim that it currently possesses authority to regulate CO2 as a pollutant under the Clean Air Act. The characterization of CO2 as a pollutant is, in a word, remarkable. After all, this benign gas is a limiting nutrient required for life on earth. To be sure, EPA's characterization of CO2 as a pollutant and claim of regulatory powers over it are not the mere musings of a few wishful bureaucrats at the agency. The Administrator of EPA herself endorsed this view in congressional testimony on March 11, 1998. When pressed by members of Congress on the legal basis for this claim, the Administrator agreed to provide a legal opinion. A month later, EPA's general counsel supplied one that attempts to support the Administrator's claim.

The sweeping claim of regulatory powers over such a pervasive, yet benign, substance as CO2 presents the prospect of unparalleled bureaucratic, legal and economic burdens imposed on the entire heart of the American economy - - more than one million businesses of all sizes in most sectors. In view of the grave consequences posed by EPA's expansive claim of administrative powers, the National Mining Association's Board of Directors requested its Legal Affairs Committee to evaluate EPA's authority to regulate in this area. What follows is the Committee's report and analysis which concludes that, contrary to EPA's claim, the agency lacks authority under the Clean Air Act to regulate carbon dioxide emissions.

One need not be an expert on the Clean Air Act or, for that matter, a lawyer to comprehend the reasoning for this conclusion. Simply recall the bedrock principle upon which our system of government rests: the legislative branch makes the laws and the executive branch executes them. The corollary principle is, of course, that an agency's administrative powers are limited to the authority delegated by Congress. The analysis that follows probes this fundamental question.

The natural tendency of administrative agencies to swell their mission beyond the will of Congress as expressed in the law is, unfortunately, a product of our modern regulatory state. On occasion, this tendency is also accompanied by a callous disregard for the most basic of principles that undergird our system of government, as was the case not long ago when the White House challenged "Congress [to] amend the Clean Water Act to make it consistent with the agencies' rulemaking." See National Mining Association v. U.S. Army Corps of Engineers,145 F. 3d 1399 (D.C. Cir. 1998). If nothing else, this viewpoint should inform us that if we are to assure fidelity to the basic principles of our system of government, we must embrace the wisdom offered in Thomas Jefferson's suggestion that the price of liberty is eternal vigilance, and always follow Abraham Lincoln's recognition that the U.S. Executive Branch, under the Constitution, lacks the authority to "make permanent rules of property by proclamation."

Fredrick D. Palmer
Chairman, Legal Affairs Committee
October 12, 1998

EXECUTIVE SUMMARY

Soon after the negotiators returned from Kyoto last December with a protocol that mandates sharp reductions in greenhouse gas emissions by the United States and other developed nations, the Administrator of the Environmental Protection Agency (EPA) informed Congress that the agency already possessed authority to begin meeting the targets for emission cuts. Specifically, the Administrator claimed that carbon dioxide (CO2) could be characterized as a pollutant and regulated by EPA pursuant to the Clean Air Act (CAA). At the request of the National Mining Association's Board of Directors, its Legal Affairs Committee evaluated this claim. After a comprehensive review of the language and structure of the CAA, its legislative history and other related laws, the analysis concludes that, contrary to EPA's claim, Congress did not provide EPA with such authority. Instead, Congress deliberately limited EPA's endeavors in this area to non-regulatory activities.

NMA's legal analysis probes the fundamental question of whether Congress intended to delegate to EPA the power to regulate CO2 emissions. The analysis first demonstrates that the plain text of the statute fails to delegate such authority to EPA. Second, it examines each of the sections of the CAA cited by EPA in its legal opinion, and shows that EPA's attempt to regulate CO2 is inconsistent with those very sections of the CAA. Third, the legislative history of the CAA is examined and shown to contradict EPA's position. Fourth, the analysis explains that other statutes and treaties support the inevitable conclusion that Congress did not want EPA to regulate CO2 without additional legislation. Finally, the analysis cautions that even if Congress decided to authorize EPA to regulate CO2 under the CAA, the agency would have great difficulty sustaining its burden of showing that CO2 emissions endanger the public health and welfare.

There is no disputing the fact that the CAA does not explicitly state that EPA may regulate CO2. Despite the longstanding debate about global warming, not one of the sections cited by EPA (or any other section) provides that the agency may regulate CO2. In fact, the only sections of the CAA that even mention global warming or CO2 emphasize that such emissions should be the subject of study, but not regulation.

The agency's legal opinion cites several provisions of the CAA ( §§ 108-112, 115, 202(a) and 211(c)) that it contends are "potentially applicable" to confer EPA jurisdiction over CO2. Even though the most direct evidence shows that Congress did not intend that EPA regulate CO2, the agency hangs its tenuous claim on general language contained in the CAA. Such language, of course, cannot defeat the specific intent of Congress on the question of whether Congress intended for EPA to regulate CO2 emissions. But, even if the statute were not clear that EPA cannot regulate CO2, the regulatory structure of the sections cited by EPA are completely inconsistent with the regulation of a substance like CO2, and therefore also compel a conclusion that EPA may not regulate CO2.

One example of the general language in the CAA cited by EPA are the sections on criteria pollutants (§§ 108-109). Under these sections, EPA is authorized to establish National Ambient Air Quality Standards ("NAAQS") to control national, statewide, and local pollution. However, these provisions, which are aimed at pollution that affects air quality locally or regionally, cannot even theoretically address the CO2 concentrations that purportedly implicate an atmospheric phenomena of climate change on a global scale. Since Congress does not delegate regulatory authority to an agency to impose restrictions that are somehow calculated to serve an unattainable goal, Congress did not intend for EPA to regulate CO2 using these sections of the law. Other examples abound, and the analysis discusses why the regulation of CO2 does not fit within the regulatory scheme established by Congress. The extreme difficulty that EPA has in trying to force CO2 into a regulatory scheme that does not fit provides further evidence that Congress never intended CO2 to be regulated under what EPA says are "potentially applicable" sections of the CAA.

The legislative history of the CAA confirms NMA's conclusions. The CAA did not refer to CO2 until the 1990 amendments were passed. In those amendments, Congress specifically debated and ultimately rejected proposals to allow EPA to regulate CO2 emissions. Instead, Congress authorized EPA only to study certain greenhouse gasses, not regulate them. By specifically considering this issue and resolving it against regulation, Congress clearly withheld from EPA any powers to regulate CO2.

In determining the meaning of a statute, one may also consider related statutes on the same subject. Such related legislation can provide corroborating evidence of congressional intent. Such is the case here, since several laws and treaties support the conclusion that Congress did not delegate authority to regulate CO2 to EPA. These include the Energy Policy Act of 1992, the Rio Treaty, the National Climate Program Act, the Global Change Research Act, and the Food and Agriculture Act of 1990. These laws have consistently rejected proposed measures to mandate restrictions on greenhouse gas emissions, and instead directed the executive branch agencies to study the matter and report back to Congress. Likewise, treaties have been consistently negotiated with the understanding that any binding emissions reduction targets would require Congressional approval.

EPA's claim has one further flaw. Even if Congress left to EPA's discretion the decision of whether to regulate CO2 under the CAA, EPA would still be required to prove that CO2 emissions cause harmful effects to the public health, welfare or the environment. Given the complexities and uncertainties over global warming, and the serious flaws in some of the fundamental evidence relied upon by global warming advocates, it is doubtful that EPA could support such a finding. A separate technical report that was prepared in conjunction with this legal analysis demonstrates that the available evidence does not support EPA's implicit assumption that increased levels of CO2 would be detrimental to the public health and welfare.

In sum, the language of the CAA, its structure, its legislative history, and other related statutes all lead to the same conclusion: Congress has not delegated authority under the Clean Air Act for EPA to regulate carbon dioxide emissions.

TABLE OF CONTENTS

PREFACE

EXECUTIVE SUMMARY

INTRODUCTION

ANALYSIS

I. THE LANGUAGE OF THE CLEAN AIR ACT DEMONSTRATES THE ABSENCE OF AGENCY AUTHORITY TO REGULATE CARBON DIOXIDE. .

II. THE REGULATION OF CARBON DIOXIDE AS A POLLUTANT DOES NOT FIT WITHIN THE REGULATORY SCHEME CREATED BY CONGRESS.

A. Introduction.

B. There is No Authority in the CAA to Regulate Carbon Dioxide as a Criteria Pollutant.

III. THE LEGISLATIVE HISTORY OF THE CAA AMENDMENTS OF 1990 CONFIRMS THAT EPA DOES NOT HAVE AUTHORITY TO MANDATE RESTRICTIONS OF CARBON DIOXIDE EMISSIONS.

A. Introduction.

B. Senate Consideration.

C. House of Representatives Consideration.

D. The Final Legislation.

IV. OTHER CONGRESSIONAL ENACTMENTS REGARDING POTENTIAL GLOBAL CLIMATE CHANGE DEMONSTRATE CONGRESS' INTENT NOT TO REGULATE CARBON DIOXIDE EMISSIONS.

A. Introduction.

B. The Energy Policy Act of 1992.

C. The Rio Treaty.

D. Other Congressional Action on Global Warming.

E. The Kyoto Protocol.

F. Sum as to Congressional Climate Change Legislation.

V. CARBON DIOXIDE EMISSIONS DO NOT ENDANGER THE PUBLIC HEALTH OR WELFARE.

CONCLUSION

ENDNOTES

INTRODUCTION

Carbon dioxide is a clear, odorless gas that appears naturally in the earth's atmosphere and is a fundamental component of life on earth. All animals (including human beings) inhale oxygen and exhale carbon dioxide, and plants take in carbon dioxide from the atmosphere as a part of photosynthesis and return oxygen to the atmosphere as a byproduct of the same process.

Carbon dioxide is also a naturally occurring "greenhouse gas." The earth has a natural "greenhouse effect" in which heat from the sun is trapped below the earth's atmosphere and is partially prevented from re-radiating back into space. The greenhouse gases that cause this effect appear in trace amounts in the atmosphere and include water vapor (by far the most significant greenhouse gas), carbon dioxide, methane, nitrous oxides and stratospheric ozone. Without the naturally occurring greenhouse effect, the earth's climate would be far too cold to sustain life as we know it.(1)

It is known that since the industrial revolution, carbon dioxide levels in the atmosphere have been increasing as a result of human activities (principally the combustion of fossil fuels for transportation, electric generation, residential and commercial heating and a variety of other processes, as well as deforestation). Presently, atmospheric levels of carbon dioxide are estimated to be approximately 25% higher than in pre-industrial times.(2)

Some scientists believe that the increased levels of carbon dioxide in the atmosphere are enhancing the natural greenhouse effect to the extent that the world is facing a climatological Armageddon. These scientists believe that increasing atmospheric carbon dioxide will cause unprecedented warming of the Earth resulting in a variety of climatological disasters running the gamut from more storms and flooding to more drought and desertification.

The alarm set off by the predictions of these scientists resulted in the United States entering into the 1992 Framework Convention on Climate Change, the so-called Rio Treaty.(3) The United States and other developed nations agreed in the Rio Treaty to take voluntary action in an attempt to reduce emissions of carbon dioxide to 1990 levels by the year 2000.

Despite a variety of efforts by government and industry, the Clinton Administration's Climate Change Action Plan has not succeeded in reducing United States carbon dioxide emissions. There is now virtually no possibility that the Rio target will be met. Other countries similarly will fail to meet that target.

The Clinton Administration, nevertheless, wants to commit the United States and other developed countries to even more stringent emissions reductions than set forth in the Rio Treaty. In December of last year, the Administration entered into the Kyoto Protocol, which would require the country to meet binding targets and timetables for reducing carbon dioxide emissions significantly below 1990 levels before the end of the next decade.

As a treaty of the United States, the Kyoto Protocol cannot become legally binding on this country until ratified by a two-thirds vote of the U.S. Senate.(4) Prior to Kyoto, the Senate, by a 95-0 margin, adopted the Byrd-Hagel resolution in which the Senate expressed that it would not ratify any protocol that did not require substantive Third World participation and which would damage the U.S. economy.(5) By the Administration's own admission, the Kyoto Protocol fails to achieve the first condition (and by any reasonable analysis fails to achieve the second condition as well). The Administration has not yet submitted the treaty to the Senate for its consent and states that it will not do so until there are meaningful commitments by Third World countries to reduce their carbon dioxide emissions.

The Administration has pledged that it will not implement the Kyoto Protocol unless it is ratified by the Senate. Nevertheless, in testimony before Congress, the Administrator of the U.S. Environmental Protection Agency (EPA) took the position that, even if the Kyoto Protocol is not ratified, the agency currently possesses authority under the Clean Air Act to regulate carbon dioxide emissions.(6) Several weeks later, EPA produced a legal opinion by its then General Counsel, Jonathan Z. Cannon, to support EPA's claim of expansive authority in this regard.(7)

The National Mining Association (NMA) Board of Directors asked its Legal Affairs Committee to evaluate whether EPA has the authority it now asserts. This legal analysis presents our report. We conclude that EPA does not have authority under the CAA to regulate the emission of carbon dioxide.

Our analysis begins with the fundamental inquiry of whether Congress intended to delegate to EPA the power to regulate carbon dioxide emissions. It is, of course, axiomatic that an agency's administrative powers are limited to the authority delegated by Congress.(8) In order to ascertain congressional intent we employ the traditional tools of statutory construction including the language and structure of the statute as a whole, its legislative history, the history associated with congressional activities in this area, and, to some extent, other relevant statutes. This approach to discerning congressional intent is not only well-accepted,(9) it is particularly appropriate where, as here, an agency takes an expansive view of the scope of its delegated authority.(10)

The EPA general counsel claims that the scope of the agency's CAA regulatory powers extends to any substance that is an "air pollutant" which the Administrator determines endangers public health, welfare or the environment.(11) According to the general counsel, carbon dioxide emissions fall within the general statutory definition of "air pollutant."(12) We need not debate this conclusion now since, as even the general counsel acknowledges, the inquiry does not end with the definition of "air pollutant."(13) A substance that may literally fall within the definition of "air pollutant" may not be regulated unless it also meets the standards for regulation under specific statutory criteria. Satisfaction of this threshold requirement includes not only a determination that a substance, here carbon dioxide, may cause adverse public health, welfare or environmental effects, but also that the statutory provision, or scheme, provides an appropriate and effective means for its regulation. The general counsel merely assumes that the former determination can be made, and wholly avoids evaluation of the latter consideration. Moreover, the general counsel's analysis is devoid of any consideration of congressional activity on this subject in the context of both the CAA and other relevant statutes that evince Congress' intent to withhold authority from EPA to regulate carbon dioxide emissions. In short, the general counsel's analysis is less than complete and, as a consequence, his conclusion that carbon dioxide emissions are within the scope of EPA's authority to regulate lacks substantive foundation.

It is our conclusion, grounded on what we believe is a more comprehensive approach to statutory construction, that the CAA does not provide EPA with authority to regulate carbon dioxide emissions. As discussed in more detail below:

1. The language of the CAA demonstrates the absence of agency authority to regulate carbon dioxide;

2. The regulation of carbon dioxide as a pollutant does not fit within the regulatory scheme created by Congress;

3. The legislative history of the CAA Amendments of 1990 confirms that EPA does not have authority to mandate restrictions on carbon dioxide emissions; and

4. Other Congressional enactments regarding potential global climate change demonstrate Congress' intent not to regulate carbon dioxide emissions.

In addition, we do not believe that the available evidence would support a finding that carbon dioxide emissions endanger the public health or welfare or the environment. The Greening Earth Society has released an October 12, 1998 report entitled "In Defense of Carbon Dioxide: A Comprehensive Review of Carbon Dioxide's Effects on Human Health, Welfare and the Environment," prepared by the firm of New Hope Environmental Services, to accompany this legal analysis. The Greening Earth Society report rebuts the claim that increased levels of carbon dioxide are leading to a climatological disaster. Our legal analysis herein does not depend on the results of this technical report. Whether or not carbon dioxide emissions present a danger to the public health, welfare or the environment, EPA does not have authority to regulate that substance. Nevertheless, as shown in the Greening Earth Society report, there is no basis to conclude that carbon dioxide emissions are damaging the environment and every basis to conclude that such emissions are benefitting the environment.

ANALYSIS

I. THE LANGUAGE OF THE CLEAN AIR ACT DEMONSTRATES THE ABSENCE OF AGENCY AUTHORITY TO REGULATE CARBON DIOXIDE.

We begin our analysis with an examination of the statutory language. A proper examination of the statutory text includes not only the language itself but the context of the language as it appears in the overall regulatory scheme created by Congress.(14) Toward this end, a review of the detailed regulatory provisions of the CAA reveals that none of them mention carbon dioxide emissions or global warming. When Congress did speak directly to the issue, it did so solely in the context of non-regulatory activities such as research and technology programs. Accordingly, the text and structure of the CAA reveals Congress' deliberate choice to confine EPA's CAA endeavors on carbon dioxide to non-regulatory activities.

As part of our examination of the language and structure of the CAA, it is useful to refer to the historic context of both the debate surrounding global warming and congressional activities in this area. The theory that emissions of carbon dioxide and other greenhouse gases could possibly lead to a dangerous global warming has been under consideration in Congress since the late 1970's. During that period, proponents of greenhouse gas regulation have informed Congress on numerous occasions of the environmental catastrophe which, in their view, could result if no such regulation is undertaken.(15) Indeed, EPA has taken the view that global climate change as a result of greenhouse gas emissions is the number one environmental issue facing the world today.(16) Of course, significant restrictions on emissions of carbon dioxide could have devastating consequences for our society.(17) Carbon dioxide is the inevitable result of the combustion of fossil fuels, and the combustion of fossil fuels is far and away the most important source of energy for modern civilization.(18) Because there is no even remotely feasible way of preventing carbon dioxide emissions when fossil fuels are combusted, carbon dioxide regulation means potentially severe reductions in the use of fossil fuels and far-reaching changes in the way society uses energy.(19)

In view of this longstanding debate on the potential for global warming from greenhouse gas emissions, one would expect that any congressional authorization to address this concern through the CAA regulatory scheme would be plainly expressed in the language of the statute. Congress is not in the habit of granting far-reaching authority to administrative agencies sub silentio. Yet nowhere in the CAA is there an explicit authorization for EPA to regulate carbon dioxide. Congressional silence on a matter of such significance is not unlike the "watchdog [that] did not bark in the night."(20)

Our conclusion that the language of the CAA does not support EPA's claim of authority to regulate carbon dioxide need not rest upon congressional silence alone. The text of the statute demonstrates Congress' deliberate choice to limit EPA's endeavors on carbon dioxide to non-regulatory activities.

The CAA expressly provides authority to regulate numerous substances specifically referenced in the statute. For example, Sections 108 and 109 authorize EPA to regulate so-called "criteria pollutants," which are explicitly listed and placed in the context of a specific scheme for their regulation.(21) Section 112 directs EPA to designate and regulate hazardous air pollutants ("HAPs"), and lists no less than 190 specific such pollutants Congress determined are the most important to regulate.(22) Similarly, Title VI of the CAA authorizes EPA to list and regulate substances which deplete the stratospheric ozone layer, and designates 53 substances to be so regulated.(23) But neither global warming generally, nor carbon dioxide specifically, are mentioned anywhere in this prolific regulatory scheme developed by Congress.

To be sure, the CAA does contain references to carbon dioxide and global warming. However, the context in which these terms appear within the statutory scheme provides powerful guidance on congressional intent. The statute mentions carbon dioxide and global warming solely in the context of provisions that authorize their study, monitoring and evaluation of non-regulatory strategies. For example, CAA Section 103(g) lists carbon dioxide as one of several items to be considered in EPA's conduct of a "basic engineering research and technology program to develop, evaluate and demonstrate nonregulatory strategies and technologies."(24) Global warming is mentioned in CAA Section 602(e) which directs EPA to examine the global warming potential of certain listed substances that contribute to stratospheric ozone depletion.(25) However, this provision -- the only one in the statute that mentions global warming -- is accompanied by an express admonishment that it "shall not be construed to be the basis of any additional regulation under [the CAA]."

This examination of the statutory language in its context within the overall scheme of the CAA provides a more complete analysis than the EPA's general counsel's mechanistic approach whereby the agency simply bootstraps itself into carbon dioxide regulation through a broadly worded definition of "air pollutant." To accept the analysis proffered by EPA's general counsel is to presume a delegation of power merely by the absence of an express withholding of such power -- a view plainly out of step with the principles of administrative law.(26) The fundamental principles of statutory construction do not permit one to read into the CAA's detailed regulatory provisions greenhouse gases such as carbon dioxide that Congress deliberately left out. Congressional silence on carbon dioxide in this part of the CAA is audible. The intentions of Congress by such silence in the CAA's regulatory scheme become unmistakable with its deliberate choice to address global warming and carbon dioxide solely in the non-regulatory provisions of the statute.(27)

This approach to evaluating the language within the overall statutory scheme leads us to conclude that, with respect to carbon dioxide, Congress has indicated that EPA's authority stops at the point of non-regulatory activities. Any claim that EPA currently possesses authority to regulate carbon dioxide emissions would extend the CAA beyond the scope intended by Congress.

II. THE REGULATION OF CARBON DIOXIDE AS A POLLUTANT DOES NOT FIT WITHIN THE REGULATORY SCHEME CREATED BY CONGRESS.

A. Introduction

The EPA general counsel identifies several CAA regulatory provisions that are, in his words, "potentially applicable" to carbon dioxide emissions.(28) Without any meaningful analysis, the opinion simply concludes that the specific criteria for regulation under these provisions could be met if the Administrator determines that carbon dioxide can be reasonably anticipated to cause or contribute to adverse effects on public health, welfare or the environment.(29)

For the moment, we leave aside the question of whether the Administrator would be able to make the health, welfare or environmental effects determination the general counsel poses as singularly important, because his analysis is incomplete.(30) For the purposes of this step of our analysis, our examination of those "potentially applicable" provisions discloses that they do not provide appropriate tools for the regulation of carbon dioxide emissions' purported effects on global warming. The fact that the regulation of carbon dioxide as a pollutant does not fit into the regulatory scheme established in the statute confirms the conclusion that its regulation by EPA under the CAA is not intended by Congress.

B. There is No Authority in the CAA to Regulate Carbon Dioxide as a Criteria Pollutant.

1. EPA's Authority to Designate Substances as Criteria Pollutants.

The EPA general counsel states that one potential source of EPA authority to regulate carbon dioxide emissions is CAA Sections 108, 109 and 110.(31) These sections provide authority to EPA to establish, implement and enforce National Ambient Air Quality Standards (NAAQS) for what are known as "criteria pollutants." Under CAA Section 108(a)(1), criteria pollutants are those substances which, in the judgment of the EPA Administrator, "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare" and which are produced by "numerous or diverse mobile or stationary sources."

Once a substance is identified as a criteria pollutant,(32) the Administrator is required under CAA Section 109 to publish primary and secondary NAAQS for each such substance. Primary NAAQS are "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health." Secondary NAAQS are standards "requisite to protect the public welfare."

Once NAAQS are established, a complex regulatory structure is triggered that mandates reductions of criteria pollutants in the ambient air to levels which protect the public health and welfare as set forth in the applicable NAAQS.(33) Under CAA Section 107(d)(1)(B), within a defined period EPA is required to designate nonattainment, attainment and unclassifiable areas. Under CAA Section 110(a)(1), within three years after promulgation of a NAAQS, every state must "adopt and submit to the Administrator" a state implementation plan, or "SIP," "which provides for implementation, maintenance, and enforcement" of the primary and secondary NAAQS. CAA Section 110(a)(2) provides a long list of SIP requirements designed to ensure that states will achieve the air quality required by the NAAQS. Similarly, CAA Section 172(34) provides EPA with extensive authority to ensure that nonattainment areas are brought into attainment "as expeditiously as practicable."(35)

2. Congress Could Not Have Intended to Regulate Carbon Dioxide and Other Greenhouse Gases as Criteria Pollutants Because the Statutory Regime for Regulating Criteria Pollutants is Wholly Unsuited to Preventing or Mitigating Potential Global Climate Change.

The criteria pollutant regulatory structure described in the foregoing section is designed to apply to local air pollution in the sense that ambient concentrations of the pollution will differ from locality to locality, causing some localities to be designated as attainment areas and others as nonattainment areas.(36) All of the substances which EPA has designated as criteria pollutants meet this framework. Lead, sulfur oxides, nitrogen dioxide, carbon monoxide, particulate matter and ozone concentrations in the air all present local air pollution problems that have resulted in discrete portions of the country being designated as nonattainment for each. Some of the pollutants (principally ozone) are blown downwind, causing EPA to seek to exercise authority in the CAA to require modifications in SIPs to prevent ozone formation in downwind states.(37) But even ozone presents a local air pollution problem in that ambient ozone concentrations differ from locality to locality, resulting in the designation of discrete ozone nonattainment areas.

Emission controls implemented under the CAA criteria pollutant regulatory structure described above are designed to cure the specific cause of the local nonattainment problem. States in their SIPs select those types of controls "as may be necessary" to achieve attainment in designated nonattainment areas, and these types of controls may differ from state to state and from nonattainment area to nonattainment area depending on the particular problem being addressed.(38)

As a result of the criteria pollutant statutory structure, ambient concentrations of each of the criteria pollutants have been steadily reduced through the application primarily of local controls but with upwind controls as well. Although not all localities designated as nonattainment have been brought into attainment, the criteria pollutant regulatory structure has achieved significant progress in reducing atmospheric concentrations of criteria pollutants and nonattainment.(39) More importantly, while industry and environmental groups frequently have their disputes as to the exact requirements of the criteria pollutant regulatory structure, and the speed with which nonattainment can be cured, the fact remains that such regulatory structure is plainly designed to require local nonattainment areas to achieve attainment.(40)

This statutory structure has no rational application whatsoever to a substance such as carbon dioxide, which is fundamentally different than any of the substances that EPA regulates as a criteria pollutant. Although groundlevel and lower atmospheric ambient concentrations of carbon dioxide may differ slightly from locality to locality owing to differing sources and sinks, the greenhouse effect results from overall greenhouse gas concentrations in the troposphere rather than at groundlevel. Tropospheric levels of carbon dioxide over any particular locality are not influenced by emissions of carbon dioxide locally or upwind. Carbon dioxide mixes in the troposphere globally through the natural processes of atmospheric circulation and air movement. Thus, ambient tropospheric carbon dioxide levels in any one part of the world are roughly the same as in any other part of the world.(41) As a result, one ton of carbon dioxide emitted in Washington, D.C., has the same effect on ambient tropospheric concentrations of carbon dioxide over Washington as a ton of carbon dioxide emitted in Bangladesh.

Moreover, carbon dioxide with anthropogenic (human) origins compromise only a small part of the greenhouse gases appearing in the atmosphere. In the first place, as stated, carbon dioxide is by no means the only anthropogenically emitted greenhouse gas. Other greenhouse gases emitted by man include methane, nitrogen oxides and chlorofluorocarbons, each of which has far greater heat trapping capacity per molecule than carbon dioxide.(42)

Similarly, anthropogenically emitted greenhouse gases contribute only a minuscule amount of the greenhouse gases occurring in the troposphere. Water vapor occurring naturally in the atmosphere is the main greenhouse gas, contributing about 98% of the greenhouse effect.(43) Similarly, naturally occurring sources of carbon dioxide far outweigh anthropogenic sources of carbon dioxide.(44)

The United States itself is a leading source worldwide of anthropogenic carbon dioxide emissions. However, the United States contributes only about 22% of all anthropogenic emissions of greenhouse gases,(45) and that number is projected to decline dramatically as the Third World industrializes.(46) U.S. anthropogenic emissions of carbon dioxide thus are, and will continue to be, only a tiny fraction of the total sources - - both anthropogenic and natural - - of greenhouse gases in the atmosphere.

For these reasons, it is not even theoretically possible to affect ambient concentrations of carbon dioxide in the troposphere through a program of designating nonattainment areas and requiring the submission of state-by-state SIPs. It is not known what level of ambient concentration of carbon dioxide that EPA might deem necessary to protect the public health and welfare. If EPA were to set the level below current concentrations (for instance, at pre-industrial levels), every square inch of the United States would immediately become a non-attainment area, a result that would be unprecedented in nearly three decades of CAA administration. Every state would become responsible to submit SIPs within three years containing emissions restrictions "as necessary to assure that" the NAAQS for carbon dioxide is met.(47) Yet there would be nothing a state could do, individually or in concert with every other state, that would be effective in reducing tropospheric carbon dioxide concentrations.(48)

In sum, it is obvious that the statutory scheme established by Congress for the regulation of criteria pollutants was never intended, and cannot rationally be applied, to regulate carbon dioxide emissions.(49) Under elementary principles of statutory construction, therefore, that statutory structure cannot be interpreted as providing the regulatory authority EPA claims. It is axiomatic, for instance, that Congress should not be presumed to provide regulatory authority to an agency "to impose restrictions that [are] somehow calculated to serve [an] unattainable goal."(50) Courts may even look beyond the plain meaning of legislative language "[w]hen that meaning has led to absurd or futile results."(51) Clearly, attempting to solve potential global warming through the criteria pollutant regulatory structure would be completely futile.

More fundamentally, it is axiomatic that courts must read statutory language not in isolation but in the context of the purpose which Congress intended to achieve and the other provisions of a statute designed to achieve such purpose.(52) The Cannon Memorandum would begin and end the debate with the literal meaning of the phrase "endanger the public health or welfare" and would ascribe to Congress an intent to authorize EPA to regulate any substance emitted to the air which presents a threat of such endangerment. But the literal meaning of the phrase "endanger the public health or welfare" does not end the task of statutory construction. Acts of Congress "should not be read as "a series of unrelated and isolated provisions."(53) Nor in statutory interpretation should one make a "fortress of the dictionary" by accepting the literal meaning of statutory language where such meaning is contradicted by a statute's purposes and structure.(54) Statutory construction is a "holistic endeavor"(55) that "must include, at a minimum, an examination of the statute's full text, its structure, and the subject matter."(56)

Based on these principles, it has been held that Congress cannot have intended to create regulatory jurisdiction where "the operative provisions of the Act simply cannot accommodate" the object of the asserted regulatory authority.(57) And this principle applies even where an agency is given a broad mandate to protect the public health and welfare.(58) As stated by the Supreme Court, "[i]n our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop."(59)

In the present case, the phrase "endanger the public health or welfare" in CAA Section 108 must be read in context of a criteria pollutant regulatory structure which, as described, is intended to eliminate such endangerment through a system of individual state implementation plans aimed at eliminating local pockets of pollution.(60) That structure is wholly unsuited to the global warming issue and cannot possibly eliminate the asserted danger of carbon dioxide emissions. No conclusion is possible other than that Congress does not intend to regulate carbon dioxide as a criteria pollutant.

C. EPA Does Not Have Authority to Regulate Emissions of Carbon Dioxide through the Imposition of Technology-Based Controls under CAA Section 111.

1. EPA authority under Section 111.

The EPA General Counsel opines that another potential source of authority to regulate carbon dioxide emissions would be CAA Section 111.(61) CAA Section 111 provides EPA with authority to establish "new source performance standards," or "NSPS," for categories of sources which emit air pollutants. Unlike the NAAQS, NSPS requirements are direct emissions limitations that any plant to which such controls apply must meet as a condition of operation.(62) NSPS are sometimes referred to as technology-based standards because they require installation of equipment that limits emissions from emitting sources and are not directly tied to the level of pollutants in the ambient air.(63)

Under CAA Section 111(b)(1)(A), the Administrator shall designate a category of sources as subject to NSPS requirements if she finds that sources within such category "cause... or contribute... significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." CAA Section 111(a)(1) defines "standard of performance" as:

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 nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.(64)

2. EPA Is Without Authority to Regulate Carbon Dioxide Emissions under CAA Section 111 Because There Are No Adequately Demonstrated Systems of Emissions Reduction that Would Limit Such Emissions from Stationary Sources.

Unlike the NAAQS, NSPS standards cannot be set at whatever level the Administrator determines is reasonably necessary to protect human health and welfare. The NSPS limitation must be set at a level that is "achievable" through "the best system of emission reduction which . . . has been adequately demonstrated."

The case law related to EPA determinations under CAA Section 111 has "established a rigorous standard of review . . . ."(65) While an achievable standard need not be one already routinely achieved in the industry, any such standard "must be capable of being met under most adverse conditions which can reasonably be expected to recur. . . ."(66) There must be "some assurance of the achievability of the standard for the industry as a whole."(67) "An adequately demonstrated system is one which has been shown to be reasonably reliable, reasonably efficient, and which can reasonably be expected to serve the interests of pollution control without being exorbitantly costly in an economic or environmental way."(68)

As explained by the courts, the degree to which an adequately demonstrated system must be based on commercially available technology depends on how soon the standards will become effective.(69) Because NSPS standards are generally applied to new, as yet unconstructed sources, the NSPS provision "looks towards what may fairly be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants - old stationary source pollution being controlled through other regulatory authority" (i.e., CAA Sections 108 and 109).(70) Where standards are put into effect to "control new plants immediately, as opposed to one or two years in the future, the latitude of projection is correspondingly narrowed."(71) Under this rationale, "the latitude of projection" would be narrowed even more were EPA to attempt to apply standards of performance to carbon dioxide emissions from existing stationary sources under CAA Section 111(d).

There are, however, no cost-effective systems of emissions control, either commercially available at the present time or even projected to be commercially available in the foreseeable future, for controlling carbon dioxide emissions from stationary sources that could conceivably meet the standards of CAA Section 111. As a result, CAA Section 111 cannot be applied to control stationary sources of carbon dioxide.

D. EPA Does Not Have Authority to Regulate Carbon Dioxide Emissions as a Hazardous Air Pollutant.

1. EPA Authority under CAA Section 112.

The EPA General Counsel's opinion claims that EPA may have authority to regulate carbon dioxide as a hazardous air pollutant, or "HAP," pursuant to CAA Section 112.(72) Under CAA Section 112(b), the Administrator is required to compile a list of HAPs, defined to include the 190 substances specifically listed in such subsection as well as:

. . . pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects, whether through ambient concentrations, bioaccumulation, deposition, or otherwise . . .

Under CAA Section 112(c), the Administrator is further required to compile a list of categories of major sources and area sources of HAPs. Under CAA Section 112(d), the Administrator is required to promulgate regulations establishing national emissions standards for HAPs (NESHAPs) applicable to both new and existing sources. Such NESHAPs must require the use of maximum available control technology (MACT) in controlling sources of HAPs.

2. Carbon Dioxide is not a HAP Subject to EPA Authority under CAA Section 112.

The argument that carbon dioxide may be regulated as a HAP borders on the frivolous. Each of the 190 substances listed as HAPs under CAA Section 112 is a poison, producing toxic effects in small dosages. Carbon dioxide, by any stretch of the imagination, is not a poison. Moreover, if Congress had really intended that carbon dioxide be regulated as a HAP, it would have been exceedingly strange for it to have specifically named 190 of the presumably most obvious and important HAPs in CAA Section 112 while omitting carbon dioxide, which is by many orders of magnitude more ubiquitous in the environment than any of the substances expressly listed.

In addition, the language of CAA Section 112 excludes regulation of carbon dioxide because that substance does not present either "a threat of adverse human health effects" or "adverse environmental effects" within the meaning of the section. With respect to health effects, the use of the phrase "through inhalation or other routes of exposure" in CAA Section 112(b) demonstrates that a substance may be a HAP only if it causes health impacts through direct exposure. It is the direct inhalation of the substance or other direct exposure to it that must cause the health effect.

The fact that health effects must be experienced from direct exposure is shown by the examples of such effects given in CAA Section 112(b): "carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic." Each of these is a health effect caused by direct exposure to a hazardous substance, whether that exposure is inhalation, ingestion or contact with the skin or sensory organs. It is also borne out by the list of substances which Congress pre-designated as HAPs in CAA Section 112(b) each of which causes a health effect through a direct exposure.(73)

Carbon dioxide in the amounts present and likely to be present in the atmosphere in the future do not cause health effects through inhalation or other direct exposure. The health effect typically postulated to occur as a result of global warming is the potential for an increase in tropical diseases. Such effect (even if true) would be, at best, highly indirect, caused by the reaction carbon dioxide and other greenhouse gases have in the atmosphere, which might warm the climate, which might make areas of the United States conducive to insects carrying tropical diseases, which might lead to an increase in such diseases. Such effect is completely unlike the health effects referred to in CAA Section 112.(74)

Similarly, the effect carbon dioxide is argued to have on the environment is not caused by the direct interaction of carbon dioxide and animal or plant life but the indirect effect of carbon dioxide on the climate. The use of the terms "bioaccumulation" and "deposition" to describe the causes of environmental effects contemplated by CAA Section 112(b) demonstrates that Congress did not intend to regulate through CAA Section 112 effects not directly caused by the HAP itself. And, again, the effect greenhouse gases are asserted to have on the environment is nothing like the effect of the various chemicals included on Congress' pre-designated list of HAPs in Section 112(b), each of which causes a harm through direct exposure.(75)

The legislative history of CAA Section 112 makes it abundantly clear that carbon dioxide cannot be considered to be a HAP. In distinguishing between the types of substances that are HAPs and the types that are criteria pollutants, the legislative history states that criteria pollutants are "more pervasive, but less potent, than hazardous air pollutants."(76) "Hazardous air pollutants are pollutants that pose serious health risks. . . . They may reasonably be anticipated to cause cancer, neurological disorders, reproductive dysfunctions, other chronic health effects, or adverse acute human health effects."(77)

Similarly, "adverse environmental effect" is defined in the legislative history as follows:

Adverse environmental effects -- The chemical is known to cause or can reasonably be anticipated to cause, because of --

E. EPA Does Not Have Authority to Regulate Carbon Dioxide Emissions under CAA Section 115.

The EPA general counsel also suggests that EPA may regulate carbon dioxide under CAA Section 115(79) regarding control of international air pollution. CAA Section 115(a) provides:

Whenever the Administrator, upon receipt of reports, surveys, or studies from any duly constituted international agency has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate.

Under CAA Section 115(b), the giving of notice to a governor under CAA Section 115(a) constitutes a "SIP call." The applicable state is thereupon required to amend the portion of its SIP "as is inadequate to prevent or eliminate the endangerment referred to in subsection (a) of this section."

CAA Section 115 does not apply to carbon dioxide emissions because the provision is self-evidently designed to apply only to situations where wind borne pollution from the United States is being deposited in a near-by country.(80) It stretches the provision beyond its intended scope to say that it applies to a phenomenon such as the greenhouse effect, where emissions anywhere on the globe contribute equally to tropospheric levels of carbon dioxide that are roughly the same anywhere else on the globe.

The limited intent of CAA Section 115 is demonstrated by its use of the "SIP call" mechanism as the means of enforcing emissions reductions. As discussed above, it would be entirely unprecedented to use the SIP process to mandate emissions reductions from the entire country, particularly where reductions even from the U.S. as a whole cannot solve presumed global warming.

The limited intent of CAA Section CAA 115 is also demonstrated in subsection (c), entitled "reciprocity," which states that "[t]his section shall apply only to a foreign country which the Administrator determines has given the U.S. essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section." As can be seen, this section provides that the U.S. will not restrict emissions of pollutants causing injury to another country unless that country reciprocates. Such section has no logical application to the global warming phenomenon, where U.S. emissions are presumably harming every other country in the world. Such section could presumably be applied as to carbon dioxide emissions only if every other country reciprocated. That is a circumstance so unlikely to occur that it is impossible to believe that Congress intended that CAA Section 115 would be applied to a phenomenon such as global warming.

In any event, unless and until the Senate ratifies the Kyoto Protocol (and unless and until the Protocol is adopted by enough countries to enter into force), no country has given the U.S. any "rights" with respect to the control of carbon dioxide emissions within their borders. Even if the Kyoto Protocol enters into effect, if the U.S. does not become a party to it then the U.S. is not entitled to any "rights' thereunder respecting foreign countries that have.

In sum, CAA Section 115 cannot provide authority to regulate carbon dioxide emissions.

III. THE LEGISLATIVE HISTORY OF THE CAA AMENDMENTS OF 1990 CONFIRMS THAT EPA DOES NOT HAVE AUTHORITY TO MANDATE RESTRICTIONS OF CARBON DIOXIDE EMISSIONS.

A. Introduction.

The only provisions in the CAA that explicitly refer to carbon dioxide or global climate change were enacted as a part of the CAA Amendments of 1990. The legislative history of the 1990 Amendments confirms that Congress never intended to impose or authorize mandatory restrictions on carbon dioxide emissions.

During Congressional consideration of the 1990 Amendments there was a sharp dispute between those who believed that the time had come for the United States to impose mandatory reductions on carbon dioxide emissions and those that did not. The latter group prevailed. Congress specifically rejected proposals to authorize EPA to regulate emissions of carbon dioxide. The only carbon dioxide/global warming provisions adopted were non-regulatory.

As the Supreme Court has emphasized, "[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded."(81) The fact that Congress considered and rejected authorizing EPA to regulate carbon dioxide emissions compels a conclusion that EPA cannot now claim such authority.

B. Senate Consideration.

The vehicle for Senate consideration of the Clean Air Act Amendments of 1990 was S. 1630, the Clean Air Restoration and Standards Attainment Act of 1989.(82) Introduced by Senator Baucus, Chairman of the Senate Environment and Public Works Committee to which the bill was referred, the bill contained comprehensive amendments to the CAA.(83)

As originally introduced, S. 1630 contained no global climate protection provisions, with one exception. Section 206 of the bill contained light duty motor vehicle tailpipe standards explicitly requiring limits on the emission of carbon dioxide.(84)

By the time the bill emerged from committee, however, S. 1630 had become the focus of an attempt by the Senate to legislate broad-based authority for EPA to regulate carbon dioxide and other greenhouse gases. As reported from committee, the bill contained a Title VII entitled the "Stratospheric Ozone and Climate Protection Act" dealing with what were argued to be the related issues of stratospheric ozone depletion and global climate change."(85) Title VII found that "stratospheric ozone depletion and global climate change from continued emissions of chluroflurocarbons and other halogenated chlorine containing halocarbons with ozone depleting potential, and emissions of other gases, such as methane and carbon dioxide, imperil human health and the environment worldwide;" and that "emissions of other gases, such as methane and carbon dioxide, should be controlled."(86) (Emphasis supplied.) The legislation included as goals not just protection of the ozone layer but prevention of possible global warming as well:

The objectives of this title are to restore and maintain the chemical and physical integrity of the Earth's atmosphere, to protect human health and the global environment from all known and potential dangers due to atmospheric or climatic modification, including stratospheric ozone depletion, to provide for a smooth transition from the use of ozone depleting chemicals to the use of safe chemicals, products, and technologies that do not threaten the ozone layer, and to reduce the generation of greenhouse gases in order to protect the Earth's ozone layer and to limit anthropogenically induced global climate change . . .

In order to achieve the objectives of this title, it is the national goal to eliminate atmospheric emissions of manufactured substances with ozone depleting potential as well as direct and indirect global warming potential, including chluroflurocarbons and other halogenated chlorine or bromine containing halocarbons with ozone depleting and global warming potential, to reduce to the maximum extent possible emissions of other gases caused by human activities that are likely to affect adversely the global climate, and to provide for an orderly shift to alternative, safe chemicals, products, and technologies. (Emphasis supplied.)(87)

In order to accomplish these goals, the Administrator would be required to publish priority and secondary lists of all manufactured substances "which are known or may reasonably be anticipated to cause or contribute significantly to atmospheric or climatic modification, including stratospheric ozone depletion." (Emphasis supplied.)(88) The Administrator would also be required to promulgate regulations providing for the phase-out of substances on the lists.(89) The legislation as reported also contained a modified version of the carbon dioxide tailpipe standards originally contained in S. 1630 as introduced.(90) Consistent with these legislative requirements, the Senate Committee Report on S. 1630 contains a great deal of discussion on the need for the country to deal with the "[t]wo distinct but closely related global environmental crises," that is, destruction of the ozone layer and potential global warming.(91)

The Senate adopted Title VII of S. 1630 as reported from committee almost without change.(92)

C. House of Representatives Consideration.

The House CAA Amendment bill was H.R. 3030, introduced by Representative Dingell, Chairman of the House Energy and Commerce Committee to which the bill was referred.(93) As introduced and as reported from Committee, the bill contained no terms dealing with stratospheric ozone depletion or global warming.(94)

On the floor of the House, a comprehensive stratospheric ozone title was adopted as an amendment introduced by Rep. Dingell.(95) The House amendment was closer to the final legislation regarding stratospheric ozone than the Senate bill. As in the final legislation, there were no findings or purposes stated in the House bill regarding the need to deal with global warming or referring to carbon dioxide or other greenhouse gases. And, significantly, the definition of the substances that could be regulated, set forth in Section 151(a) of Rep. Dingell's bill, did not even arguably include greenhouse gases that were not ozone depleting substances.(96)

D. The Final Legislation.

The final legislation that emerged from the conference committee and became law contains a stratospheric ozone title that was a compromise between the House and Senate versions.(97) However, the House version prevailed completely in eliminating the language in the Senate bill that would have authorized regulation of non-ozone depleting greenhouse gases such as carbon dioxide. Title VI as enacted did not include the Senate's language authorizing EPA to regulate "manufactured substances" in terms broad enough to cover both substances that deplete the ozone layer and substances that do not deplete the ozone layer but which affect global climate. Instead, CAA Section 602(a)(98) as enacted requires the Administrator to list "Class I" and "Class II" substances that would be phased out pursuant to CAA Sections 605 and 606.(99) These substances are defined as those which could affect the stratospheric ozone layer; nothing in the definition of such substances refers to global climate change. And there are no findings or purposes included anywhere in the CAA specifically regarding global warming or the need to regulate greenhouse gases, as there had been in the Senate bill.(100)

In sum, the Senate in 1990 plainly saw the need to adopt amendments to the CAA to regulate greenhouse gas emissions. Yet all of the provisions proposed in the Senate dealing with global warming - - the findings and purposes language and the "manufactured substances" language which were in the final Senate bill, as well as the authority to impose NSPS requirements for carbon dioxide on mobile, stationary and residential sources and the authority to impose carbon dioxide tailpipe standards which had been considered in the Senate Committee - - were not enacted. Instead, only the non-regulatory provisions on global warming discussed above were enacted. No conclusion is possible other than that Congress determined that it did not intend to authorize regulation of greenhouse gases.(101)

IV. OTHER CONGRESSIONAL ENACTMENTS REGARDING POTENTIAL GLOBAL CLIMATE CHANGE DEMONSTRATE CONGRESS' INTENT NOT TO REGULATE CARBON DIOXIDE EMISSIONS.

A. Introduction.

Courts have consistently ruled that "[i]n determining the meaning of a statute, the courts look not only at the specific statute at issue, but at its context of related statutes."(102) Similarly, ". . . in a situation in which prior law may be unclear it is appropriate to examine a later germane statute for aid in construing the earlier law."(103)

Congress' rejection of greenhouse gas regulation in the 1990 CAA Amendments has a detailed context stretching back to the late 1970s when the issue first arose. In the two decades since that time, Congressional committees have held dozens of hearings on the subject, and Congress has enacted a number of major items of legislation dealing with potential global climate change both before and after the 1990 CAA Amendments.

In all of this time, and with all of this intensive consideration, Congress has consistently rejected measures to restrict greenhouse gas emissions. As seen, Congress rejected efforts to amend the CAA to adopt such measures. It also rejected efforts to adopt such measures in the omnibus Energy Policy Act of 1992 (EPAct), and it rejected such efforts in other legislative vehicles as well.(104) Instead, Congress has adopted legislation for various Executive Branch agencies to study the matter and report back to Congress.(105) It has also declared it to be U.S. policy to participate in international negotiations regarding climate change that may eventually lead, if Congress so determines in the future, to a decision to authorize restrictions on U.S. emissions of greenhouse gases.(106) In the meantime, pending further action, Congress has explicitly determined, through the Senate's ratification of the Rio Treaty, that the United States will not adopt binding or mandatory restrictions on greenhouse gas emissions.(107)

It is simply not possible to square this history of Congressional rejection of greenhouse gas restrictions with EPA's claim today of discretion to issue far-reaching regulations.

B. The Energy Policy Act of 1992.

EPAct is omnibus legislation containing 30 titles on the subject of energy regulation and policy. The global warming issue was discussed in detail during the legislative history of the Act. The final legislation contains a specific global climate change title, Title XVI. The title contains various provisions for study, planning and funding but no provisions authorizing mandatory reductions in greenhouse gases.

As with the 1990 CAA Amendments, the non-regulatory provisions of EPAct were adopted in lieu of proposals specifically to mandate restrictions on greenhouse gas emissions. For instance, Senator Wirth, in the 100th and 101st Congresses, introduced omnibus national energy legislation containing detailed findings and purposes language describing global warming as an imminent threat to mankind.(108) Both bills would have established a national goal "that the introduction into the atmosphere of CO2 from the United States of America shall be reduced from 1988 levels by at least 20 per centum by the year 2000 through a mix of Federal and State energy policies that are designed to mitigate the costs and risks, both economic and environmental, associated with meeting national energy needs while reducing the generation of carbon dioxide and trace gases and sustaining economic growth and development."(109) Both bills would have required DOE to adopt a national energy plan designed to meet such goal.(110) The plan would be required to include an action plan which DOE "shall implement . . . to the maximum extent possible."(111) None of these provisions, however, were included in EPAct.(112)

Another proposal to regulate greenhouse gas emissions rejected by Congress in the debate over EPAct was the so-called Cooper-Synar bill. Cooper-Synar was originally introduced as H.R. 5966 in the 101st Congress(113) and again as H.R. 2663 in the 102d Congress.(114) The bill proposed to amend the CAA to prohibit operation of new stationary sources that emit 100,000 tons or more per year of carbon dioxide without obtaining offsets under a permit program to be established by EPA.(115) It was opposed by the Bush Administration, which took the position during the debate on EPAct that the United States should undertake no actions regarding global warming other than those which would be economically justified for other reasons (the so-called "no regrets" strategy).(116)

A much watered down version of Cooper-Synar was included as Section 1605 of EPAct, but only after its sponsors had assured Congress that any provisions of a binding or regulatory nature had been removed.(117) As enacted, Section 1605 provides for voluntary reporting of greenhouse gas emission reductions, in contrast to the mandatory restrictions originally proposed. Section 1605 was offered as an amendment to H.R. 776, the bill that became EPAct, by Rep. Cooper during the mark-up of that legislation in the House Subcommittee on Energy and Power.(118) It was included in H.R. 776 as passed by the House but was opposed by the Administration in the Senate.(119) Speaking in favor of Rep. Cooper's amendment on the floor of the Senate, Senator Lieberman (who co-sponsored the Cooper language in the Senate) stated:

As a part of this energy bill, the Senator from Colorado [Mr. Wirth] who is on the floor now, and I, have prepared a simple amendment, virtually identical to one offered by Representative Jim Cooper to H.R. 776, the House energy bill, which [H.R. 776 without the Cooper amendment] was adopted unanimously on a bipartisan basis by the House Subcommittee on Energy and Power.

That amendment would have provided the Administrator of EPA with the power to establish a system for rewarding the good work of industries that voluntarily - and I stress voluntarily - either reduced their own greenhouse gas emissions or undertake programs to reduce emissions from other sources.

This was a simple amendment. It did not set goals or mandates. It did not establish timetables. It did not require reductions. It did not impose a requirement on firms to obtain credits or reduce emissions. But it did provide that good corporate citizens who voluntarily contribute to greenhouse gas emissions will have an opportunity to let the Government record their efforts at reducing those emissions in a data bank. (Emphasis supplied.)(120)

As can be seen, Congress chose to reject the original Cooper-Synar proposal which had included all the requirements that Senator Lieberman informed Congress were not included in the voluntary reporting proposal that was enacted, that is, goals and mandates, timetables, required emissions reductions and required offsets. Instead, Congress adopted non-binding provisions as to greenhouse gases, consistent with the description of U.S. policy towards potential global warming enunciated in the House Report on H.R. 776, the bill that became law:

The greenhouse warming title, together with the numerous provisions in the rest of the comprehensive energy bill, embodies the following basic approach: We should take cost-effective actions that will reduce greenhouse gas emissions (such as improving energy efficiency, facilitating coalbed methane recovery, and promoting renewable energy resources); we should analyze the important technical and policy issues that will enable us to make wiser decisions on more dramatic and possibly higher cost actions which should be taken only in the context of concerted international action.(121)

As with the 1990 CAA Amendments, the view of the global climate change issue that prevailed in the debate over EPAct did not include, and specifically rejected, mandatory restrictions on greenhouse gas emissions.

C. The Rio Treaty.

As reflected in the 1992 Report of the House Committee on Energy and Commerce on the legislation that became EPAct, Congress has consistently resisted adopting mandatory restrictions of greenhouse gas emissions in part because Congress wished to address what was essentially an international issue in an international forum. Indeed, for all of the period during which such restrictions were being proposed in Congress, and particularly during debate of the CAA Amendments of 1990 and the 1992 EPAct, the issue of potential greenhouse gas restrictions was the subject of intense international negotiation. However, as the following discussion shows, those negotiations have never resulted in Congress approving, in a treaty or otherwise, binding restrictions on greenhouse gas emissions.

The U.S. Government has been extensively involved in international discussions concerning human impacts on the global climate at least since 1979 when the first conference of the World Meteorological Organization (WMO), the United Nations Environment Program (UNEP) and the International Council of Scientific Unions (ICSU) was held. After a number of additional international conferences during the 1980s, the Intergovernmental Panel on Climate Change (IPCC) was created to address the issue of climate change. The first of a number of IPCC meetings was held in Geneva, Switzerland in November, 1988 and was attended by thirty-five nations, including the United States. The IPCC produces reports on global warming science, potential environmental and economic impacts and potential response strategies. It also advises the International Negotiating Committee (INC).(122)

The INC was established by the United Nations General Assembly on December 21, 1990 to coordinate negotiation of an international treaty dealing with potential climate change. These negotiations led to adoption, on May 9, 1992, of the Framework Convention on Climate Change, or Rio Treaty, by the resumed fifth session of the INC. The Framework Convention was signed on behalf of the United States on June 12, 1992.(123) The U.S. Senate ratified the Framework Convention on October 7, 1992 by the required two-thirds vote.(124)

The Framework Convention calls for the U.S., on a non-binding basis, to reduce greenhouse gas emissions to 1990 levels by the year 2000. It was ratified by the Senate with the clear understanding that the reductions called for in the treaty are purely voluntary.(125) As a part of the Hearings of the Senate Committee on Foreign Relations on the Framework Convention, the Committee submitted written questions to the Administration on various aspects of the Treaty. These questions and the Administration responses were included as an Appendix to the transcript of the Hearings of the Committee.(126) In responding to these questions, the Administration represented that its responses could be considered to be "authoritative statements for the Executive Branch." With respect to subparagraphs 2(a) and (b) of Article 4, which are the provisions containing the operative U.S. commitments as to targets and timetables for emissions reductions, the Administration stated:

Neither subparagraph 2(a) nor subparagraph 2(b), whether taken individually or jointly, creates a legally binding target or timetable for limiting greenhouse gas emissions.(127)

Similarly, the Report of the Senate Committee on Foreign Relations favorably reporting the Framework Convention states that:

Article 4.2b establishes an additional reporting requirement for developed country parties, including those with economies in transition, requiring them to report on national policies and measures adopted pursuant to Article 4.2a, and on the projected impact of these measures on net emissions up to the end of the decade, with the aim of returning these emissions to their 1990 levels. This aim is in the reporting section of article 4.2 and is not legally binding.(128)

The Framework Convention was ratified by the Senate with the further understanding that the Administration could not agree to amendments of or protocols to the treaty creating binding emissions reduction commitments without the further consent of the Senate. The Senate Foreign Relations Committee Report states:

The committee notes that a decision by the Conference of the Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement.

The committee notes further that a decision by the executive branch to reinterpret the Convention to apply legally binding targets and timetables for reducing emissions of greenhouse gases to the United States would alter the `shared understanding' of the Convention between the Senate and the executive branch and would therefore require the Senate's advice and consent.(129)

The Framework Convention is perhaps the most authoritative statement of U.S. policy regarding greenhouse gas emissions. It represented years of effort both domestically and internationally. The result of that effort is a plain statement directly antithetical to EPA's claim that it has discretionary authority to impose mandatory restrictions on greenhouse gas emissions. To the contrary, Congress clearly has refused to delegate such authority to the agency.

D. Other Congressional Action on Global Warming.

Three other Congressional enactments regarding global warming bear mentioning because they each demonstrate Congress' intent to reserve for itself the decision on whether regulation of carbon dioxide emissions should be undertaken.

First, on December 22, 1987, Congress enacted its first legislation specifically targeting the global warming question, the National Climate Program Act.(130) Congress chose not to enact restrictions on the emission of greenhouse gases. Instead, it explicitly recognized the need for an international approach to the global warming issue, and it recognized the need for further study of the issue.(131) Towards this end, the Act provides for the Secretary of State to coordinate U.S. participation in international negotiations regarding global climate change.(132) And it provides that the President, through EPA, shall be responsible for developing and proposing to Congress a coordinated national policy on global climate change.(133)

Second, on November 16, 1990, Congress adopted the Global Change Research Act,(134) providing for the President to establish a Committee on Earth and Environmental Sciences to coordinate a ten year research effort.

Finally, on November 28, 1990, as Title XXIV of the Food and Agriculture Act of 1990, Congress directed the Secretary of Agriculture to establish a Global Climate Change Program to research global climate agricultural issues and to provide liaison with foreign countries on such issues.(135)

These enactments are consistent with the approach taken by Congress in the 1990 CAA Amendments, in EPAct and at Rio: study the issue and participate in international negotiations. However, no agency of the executive branch possesses authority to regulate on such matter.

E. The Kyoto Protocol.

The international community has continued negotiations on the global warming issue culminating in the Kyoto Protocol. The Kyoto Protocol would create legally binding mandates on certain countries, including the United States, to restrict greenhouse gas emissions by certain amounts as of certain dates. As stated, prior to the negotiation of the Kyoto Protocol, the Senate, by a vote of 95-0 passed a resolution stating that the Senate would not ratify any treaty absent meaningful participation from Third World countries and if the treaty would damage the U.S. economy.(136) The Administration has not yet submitted the proposed protocol to the Senate for ratification pending further international negotiations. The Kyoto Protocol has no legal standing unless ratified by the Senate.

F. Sum as to Congressional Climate Change Legislation.

Through nearly two decades of debate on what may be the most important environmental issue of our time, Congress has consistently rejected efforts to regulate carbon dioxide emissions. Its intent could not be more plain: unless Congress acts, neither EPA nor any other agency has authority to restrict such emissions.

V. CARBON DIOXIDE EMISSIONS DO NOT ENDANGER THE PUBLIC HEALTH OR WELFARE.

Our analysis above has examined whether the CAA is intended to regulate the changes to global climate that are assertedly resulting from a human-induced enhancement of the natural greenhouse effect. We stated at the outset that such analysis is not dependent on whether or not carbon dioxide emissions are, in fact, leading to dangerous climate change. We have shown that, even if, arguendo, it could be demonstrated reliably that carbon dioxide emissions are leading to dangerous climate change, EPA nevertheless may not regulate such emissions under the CAA.

The available evidence, however, would not support a finding that carbon dioxide emissions are endangering the public health, welfare or environment. The Greening Earth Society report that accompanies this legal analysis demonstrates that, objectively viewed, the scientific evidence of potential global climate change supports a conclusion that there is no climatological catastrophe underway or likely to occur, as is so often claimed.

We are, of course, familiar with the deferential standards that apply when EPA is making complex technical judgments relying on information "from the frontiers of scientific knowledge."(137) We are also aware that EPA, given the precautionary nature of the CAA, may regulate under the "endanger" standard without definitive proof of actual harm.(138)

On the other hand, deference to technical agency decisionmaking does not trump the substantial evidence test as to agency factual determinations or the arbitrary and capricious standard as to policy decisions.(139) EPA may regulate under the "endangerment" standard only where there is a finding of "significant risk of harm."(140) EPA must take a "hard look" at the evidence and engage in "reasoned decisionmaking."(141) Moreover, EPA has a burden to demonstrate that its methodology is reliable, and such burden "requires more than reliance on the unknown, either by speculation, or mere shifting of the burden of proof."(142) The Greening Earth Society report shows that the evidence on which EPA would rely to show dangerous climate change as a result of carbon dioxide emissions cannot meet these standards.

Application of the arbitrary and capricious test is particularly important in judging the use by EPA of computer simulation models as the basis for a conclusion that carbon dioxide emissions are harming the public health, welfare or environment. Again, courts will defer to agency expertise in their reliance on computer models.(143) But Courts will overturn agency decisionmaking where reliance on a computer model was arbitrary and capricious.(144) In particular, oversimplifications in models can render an agency decision arbitrary.(145) Similarly, agency decisionmaking will be deemed arbitrary where a model incorporates assumptions which are known to be wrong and which bear no rational relationship to known information concerning the data being inputted or the phenomenon being measured.(146) Each step of an agency's analysis using a model will be examined to ensure that "the agency has not departed from a rational course."(147) Again, the Greening Earth Society report shows the many technical flaws in the computer models on which claims of a pending climate disaster are based. Use of these models to supply the technical justification to regulate carbon dioxide would be arbitrary.

In sum, there is no basis for EPA to regulate carbon dioxide either as a matter of law under the terms of the CAA or as a matter of fact under the "endanger the public health, welfare or environment" standard.

CONCLUSION

The congressional testimony of the EPA Administrator that EPA currently has authority to regulate carbon dioxide, followed by the release of a legal opinion by its general counsel supporting the Administrator's claim, raises the question of whether EPA intends to move forward with carbon dioxide regulation. Our analysis shows that any such effort by EPA would be unlawful.

In particular, the plain language and structure of the CAA does not support an effort to regulate carbon dioxide. Similarly, the legislative history of the CAA and of the various Congressional enactments regarding carbon dioxide demonstrate Congress' express decision, based on years of explicit and detailed consideration of the matter, not to regulate in the area of carbon dioxide and potential climate change.

Proponents of greenhouse gas regulation have tried diligently through the years to obtain a different result. They have not been successful. Unless Congress provides the authority EPA plainly desires, the agency cannot regulate carbon dioxide emissions.

Dated: October 12, 1998 Prepared by:

National Mining Association
Legal Affairs Committee

Fredrick D. Palmer
Chief Executive Officer
Western Fuels Association, Inc.
4301 Wilson Blvd., Suite 805
Arlington, VA 22203-4193
Chairman, NMA Legal Affairs Committee

Harold P. Quinn, Jr.
Sr. Vice President & General Counsel
Bradford V. Frisby
Assistant General Counsel
National Mining Association
1130 17th Street, N.W.
Washington, D.C. 20036-4677

Counsel:
Peter Glaser
Barbara Van Zomeren
Doherty, Rumble & Butler, PA
1401 New York Avenue, NW
Suite 1100
Washington, D.C. 20005

ENDNOTES

1. Lamb, H.H., 1972. Climate: Past, Present and Future, Fundamentals and Climate Now. London, Methuen, Vol. 1.

2. Houghton, J.T., G.J. Jenkins and J.J. Ephraums (Eds.), 1990. Climate Change, The IPCC Scientific Assessment, Press Syndicate of the University of Cambridge, Cambridge, England ("IPCC 1990"), p. 5.

3. S. Treaty Doc. No. 38, 102d Cong., 2d Sess. (1992).

4. U.S. Constitution, Article II, Section 2.

5. 143 Cong. Rec. S8138-39 (daily ed. July 25, 1997).

6. Departments of Veteran Affairs and Housing and Urban Development, and Independent Agencies Appropriations for 1999, Hearings before a Subcommittee of the House Committee on Appropriations, 105th Cong., 2d Sess. (1998) at 199-200.

7. April 10, 1998 Memorandum of Jonathan Z. Cannon, General Counsel, to Carol M. Browner, Administrator, subject "EPA's Authority to Regulate Pollutants Emitted by Electric Power Generation Sources" ("Cannon Memorandum") at 5. The Cannon Memorandum is included as an appendix hereto.

8. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).

9. E.g., Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-221 (1986) (courts must examine the language of the statutes as a whole); Atherton v. FDIC, 519 U.S. 213, 228-29 (1997); Dunn v. CFTC, 519 U.S. 465, 470-71 (1997).

10. Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990).

11. Cannon Memorandum at 2.

12. CAA Section 302(g), 42 U.S.C. § 7602(g).

13. CAA Section 302(g) defines "air pollutant" extremely broadly, as any substance "which is emitted into or otherwise enters the ambient air." Under this expansive definition, a substance may be an "air pollutant" even if it does not endanger the public health, welfare or the environment.

14. United Savings Ass'n of Texas v. Timbers of Inwood Forest Assoc., Ltd. 484 U.S. 365, 371 (1988).

15. E.g., Report of the Senate Committee on Environment and Public Works on S. 1630, S. Rep. No 228, 101st Cong., 1st Sess. (1989) at 377-80 (reporting on a Senate proposal, that failed to become law, to amend the CAA to regulate greenhouse gas emissions; see part III, B below).

16. E.g., Testimony of Robert Sussman, Deputy Administrator, U.S. Environmental Protection Agency before the Subcommittee on Clean Air and Nuclear Regulation of the Senate Committee on Environment and Public Works, April 14, 1994 ("perhaps the biggest environmental threat to the planet"); see also Al Gore, "Earth in the Balance, Ecology and the Human Spirit" (1992), throughout and last sentence of book: "The choice is ours; the earth is in the balance."

17. E.g., "Global Warming: The High Cost of the Kyoto Protocol, National and State Impacts, WEFA, Inc. 1998 ("WEFA 1998") (loss of 2.4 million jobs; loss of $300 billion in U.S. GDP annually if Kyoto Protocol is implemented); "The Impact of Meeting the Kyoto Protocol on Energy Markets and the Economy," Standard & Poor's DRI, July 1998 ("DRI 1998"); "Kyoto Protocol: A Flawed Treaty Puts America at Risk," CONSAD Research Corp., May 1998 ("CONSAD 1998").

18. Energy Information Administration, 1998.

19. WEFA 1998; DRI 1998; CONSAD 1998.

20. Harrison v. PPG Industries, Inc., 446 U.S. 578, 602 (1980) (Rehnquist, J., dissenting), quoted in Chisom v. Roemer, 501 U.S. 380, 396 n. 23 (1991). See also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 255 (1992) (Stevens, J., concurring); ACLU v. FCC, 823 F.2d 1554, 1567 n. 32 (D.C. Cir. 1987), cert. denied, 485 U.S. 959 (1988) ("[w]hen an agency's assertion of power into new arenas is under attack, therefore, * * * courts should perform a close and searching analysis of congressional intent, remaining skeptical of the proposition that Congress did not speak to such a fundamental issue").

21. See, e.g., Subparts II-V of Part D of CAA Title I, containing detailed authority to regulate groundlevel ozone, carbon monoxide, particulate matter, sulfur oxides, nitrogen dioxide and lead.

22. CAA Section 112(b), 42 U.S.C. § 7412.

23. CAA Section 602, 42 U.S.C. § 7671a.

24. 42 U.S.C. § 7403.

25. 42 U.S.C. § 7671a(e).

26. Railway Labor Executive Assn. v. National Mediation Board, 29 F. 3d 655, 671 (D.C. Cir. 1994) (en banc). See also American Petroleum Inst. v. EPA, 52 F. 3d 1113, 1120 (D.C. Cir. 1995) ("[W]e will not presume a delegation of power based solely on the fact that there is no express withholding of such power"); National Mining Association v. Dep't of the Interior, 105 F. 3d 691, 695 (D.C. Cir. 1997) (rejecting as an "extreme position" deference to an agency interpretation because Congress did not specifically preclude it).

27. Russello v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely ..."). See also Arizona v. California, 373 U.S. 546, 581 (1962) (had Congress intended to legislate in an important public area "it would have done so in clear and unequivocal terms," as it had in other provisions of the legislation); General Motors Corp. v. U.S., 496 U.S. 530, 538-39 (1990).

28. Cannon Memorandum at 3.

29. Id. at 5.

30. The Greening Earth Society Report that accompanies our analysis examines whether the Administrator would be able to determine with existing data that carbon dioxide causes or contributes to adverse effects on public health, welfare or the environment.

31. Cannon Memorandum at 3-4.

32. The listing of a substance as a criteria pollutant involves an elaborate, multi-year process of scientific review culminating in the publication of a lengthy report called a criteria document. Under CAA Section 109(d), 42 U.S.C. §7409(d), the Administrator is required to appoint "an independent scientific review committee" (the Clean Air Science Advisory Committee, or CASAC) to review and advise on the scientific work leading up to publication of the criteria document.

33. Train v. NRDC, 421 U.S. 60, 78 (1974); Union Electric v. EPA, 427 U.S. 246, 249-50 (1975).

34. 42 U.S.C. § 7502.

35. Severe sanctions are authorized under the CAA if a state does not submit or carry out an adequate SIP. Under CAA Section 110(c), EPA is authorized to impose a federal implementation plan, or "FIP," if EPA finds the state failed to make the required submission, if its SIP does not meet the requirements under the CAA or if the state fails to correct deficiencies identified by EPA. Under CAA Section 179, 42 U.S.C. § 7509, failure to submit a SIP within the requirements of the CAA could lead to loss of federal highway funds. See Commonwealth of Virginia v. EPA, 108 F.3d 1397, 1406-07 (D.C. Cir. 1997).

36. See, e.g., General Motors Corp., 496 U.S. at 533, 534. Moreover, EPA itself has recognized that the criteria pollutant regulatory structure does not apply to global atmospheric issues. EPA's own regulations of criteria pollutants define "ambient air" as "that portion of the atmosphere, external to buildings, to which the general public has access." 40 C.F.R. § 50.1(e).

37. See, e.g., USEPA, "Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Association Group Region for Purposes of Reducing Regional Transport of Ozone," September 24, 1997.

38. CAA Section 110(a)(2)(A). Indeed, it is a matter of state discretion to determine the specific emission controls that will be selected to as a part of a SIP to achieve and maintain attainment. Train, 421 U.S. at 86-87; Union Electric, 427 U.S. at 266; Commonwealth of Virginia, 108 F.3d at 1407-08.

39. See EPA's annual reports entitled "Air Quality Trends," the latest of which was issued in January 1998 containing data through 1996.

40. Train, 421 U.S. at 86 ("Congress intended to impose national ambient air standards to be attained within a specific period of time."); Union Electric, 427 U.S. at 249-250 (CAA is designed to "guarantee prompt attainment and maintenance of specific air quality standards"); Natural Resources Defense Council v. Train, 545 F.2d 320 (2d Cir. 1976) (holding that once the Administrator determines to list a pollutant as a criteria air pollutant under CAA Section 108, the agency is required to issue a NAAQS for such pollutant).

41. IPCC 1990, p. 9.

42. Houghton, J.T., B.A. Callendar and S.K. Callendar and S.K. Varney (Eds.), 1992. Climate Change 1992: The Supplementary Report to the IPCC Scientific Assessment. Press Syndicate of the University of Cambridge, Cambridge, England ("IPCC 1992"), p. 56.

43. Ahrens, C.D., 1985. Meteorology Today. West Publishing Co., St. Paul, Minnesota, pp. 18-19.

44. IPCC 1990, p. 8.

45. Marland, G., Andres, R.,J., T.A. Boden, C. Johnson, and A. Brenkert, 1988. Global, regional, and national CO2 emission estimates from fossil fuel burning, cement production, and gas flaring: 1751-1995. Carbon Dioxide Information and Analysis Center, Electronic Database NDP-030, Oak Ridge, TN.

46. IPCC 1992, p. 81.

47. CAA Section 110(a)(2)(C).

48. EPA could avoid placing the entire country in non-attainment status by establishing a carbon dioxide NAAQS at a level that is higher than current ambient concentrations. In that event, none of the country would be in nonattainment for the NAAQS. Again, such a result would be unprecedented. Moreover, if EPA set the NAAQS at a level that is higher than current ambient concentrations, there is nothing states could do to prevent the NAAQS from being violated in the future as greenhouse gases continue to be emitted worldwide.

49. It is true that criteria pollution regulation is intended to be "technology-forcing" and in that sense courts have ruled that the technological feasibility of attaining the NAAQS cannot be a factor in setting the NAAQS. Lead Industries Ass'n v. EPA, 647 F.2d 1130, 1149 (D.C. Cir. 1980). With carbon dioxide, however, the issue is conceptual rather than technological feasibility. Notwithstanding any future technological breakthrough, it is conceptually unworkable to regulate carbon dioxide as a criteria pollutant given the global nature of the greenhouse issue.

50. Huffman v. Western Nuclear, Inc., 486 U.S. 663, 673 (1988).

51. United States v. American Trucking Ass'n., 310 U.S. 534, 543 (1939); see also Public Citizen v. Department of Justice, 491 U.S. 440, 454 (1988).

52. Bailey v. United States, 516 U.S. 137, 145 (1995) ("[t]he meaning of statutory language, plain or not, depends on context"); McCarthy v. Bronson, 500 U.S. 136, 139 (1990) (". . . statutory language must always be read in its proper context"); Commissioner v. Engle, 464 U.S. 206, 217 (1983) (". . . our duty then is `to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested," citing NLRB v. Lion Oil Co., 352 U.S. 282, 297 (1957) (Frankfurter, J., concurring in part and dissenting in part)).

53. Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995).

54. Cabell v. Markham, 148 F. 2d 737, 739 (2d Cir.) (L. Hand, J.), aff'd, 326 U.S. 404 (1945).

55. United States Nat'l Bank of Oregon v. Independent Insurance Agents of America, 508 U.S. 439, 455 (1992) (quoting U