```

[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]

 
 IS CO2 A POLLUTANT AND DOES EPA HAVE THE POWER TO REGULATE 
                                  IT?

=======================================================================

                             JOINT HEARING

                               before the

               SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
               NATURAL RESOURCES, AND REGULATORY AFFAIRS

                                 of the

                     COMMITTEE ON GOVERNMENT REFORM

                                and the

                 SUBCOMMITTEE ON ENERGY AND EVIRONMENT

                                 of the

                          COMMITTEE ON SCIENCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 6, 1999

                               __________

                     Committee on Government Reform

                           Serial No. 106-89

                          Committee on Science

                           Serial No. 106-66

                               __________

   Printed for the use of the Committee on Government Reform and the 
                          Committee on Science

     Available via the World Wide Web: http://www.house.gov/reform

                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
62-900 CC                   WASHINGTON : 2000

                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia            CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South     DENNIS J. KUCINICH, Ohio
    Carolina                         ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California                             ------
PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont 
HELEN CHENOWETH-HAGE, Idaho              (Independent)
DAVID VITTER, Louisiana

                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
           David A. Kass, Deputy Counsel and Parliamentarian
                      Carla J. Martin, Chief Clerk
                 Phil Schiliro, Minority Staff Director
                                 ------                                

   Subcommittee on National Economic Growth, Natural Resources, and 
                           Regulatory Affairs

                  DAVID M. McINTOSH, Indiana, Chairman
PAUL RYAN, Wisconsin                 DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia                    TOM LANTOS, California
LEE TERRY, Nebraska                  PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon                  BERNARD SANDERS, Vermont
HELEN CHENOWETH, Idaho               HAROLD E. FORD, Jr., Tennessee
DAVID VITTER, Louisiana

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
                    Marlo Lewis, Jr., Staff Director
              Barbara F. Kahlow, Professional Staff Member
                       Gabriel Neil Rubin, Clerk
                 Elizabeth Mundinger, Minority Counsel

                          COMMITTEE ON SCIENCE

       HON. F. JAMES SENSENBRENNER, Jr., (R-Wisconsin), Chairman
SHERWOOD L. BOEHLERT, New York       RALPH M. HALL, Texas, RMM**
LAMAR SMITH, Texas                   BART GORDON, Tennessee
CONSTANCE A. MORELLA, Maryland       JERRY F. COSTELLO, Illinois
CURT WELDON, Pennsylvania            JAMES A. BARCIA, Michigan
DANA ROHRABACHER, California         EDDIE BERNICE JOHNSON, Texas
JOE BARTON, Texas                    LYNN C. WOOLSEY, California
KEN CALVERT, California              LYNN N. RIVERS, Michigan
NICK SMITH, Michigan                 ZOE LOFGREN, California
ROSCOE G. BARTLETT, Maryland         MICHAEL F. DOYLE, Pennsylvania
VERNON J. EHLERS, Michigan*          SHEILA JACKSON-LEE, Texas
DAVE WELDON, Florida                 DEBBIE STABENOW, Michigan
GIL GUTKNECHT, Minnesota             BOB ETHERIDGE, North Carolina
THOMAS W. EWING, Illinois            NICK LAMPSON, Texas
CHRIS CANNON, Utah                   JOHN B. LARSON, Connecticut
KEVIN BRADY, Texas                   MARK UDALL, Colorado
MERRILL COOK, Utah                   DAVID WU, Oregon
GEORGE R. NETHERCUTT, Jr.,           ANTHONY D. WEINER, New York
    Washington                       MICHAEL E. CAPUANO, Massachusetts
FRANK D. LUCAS, Oklahoma             BRIAN BAIRD, Washington
MARK GREEN, Wisconsin                JOSEPH M. HOEFFEL, Pennsylvania
STEVEN T. KUYKENDALL, California     DENNIS MOORE, Kansas
GARY G. MILLER, California           VACANCY
JUDY BIGGERT, Illinois
MARSHALL ``MARK'' SANFORD, South 
    Carolina
JACK METCALF, Washington

                 Subcommittee on Energy and Environment

                   KEN CALVERT, California, Chairman
CURT WELDON, Pennsylvania            JERRY F. COSTELLO, Illinois**
JOE BARTON, Texas                    MICHAEL F. DOYLE, Pennsylvania
DANA ROHRABACHER, California         JAMES A. BARCIA, Michigan
VERNON J. EHLERS, Michigan           EDDIE BERNICE JOHNSON, Texas
DAVE WELDON, Florida                 ZOE LOFGREN, California
GARY MILLER, California*             JOSEPH M. HOEFFEL, Pennsylvania
JUDY BIGGERT, Illinois               VACANCY
JACK METCALF, Washington             RALPH M. HALL, Texas+
F. JAMES SENSENBRENNER, Jr., 
    Wisconsin+

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on October 6, 1999..................................     1
Statement of:
    Guzy, Gary S., General Counsel, U.S. Environmental Protection 
      Agency; James Huffman, dean, Lewis and Clark Law School; 
      Peter Glaser, esq., Shook, Hardy, and Bacon; and Jeffrey G. 
      Miller, professor of law, Pace University School of Law....    11
    Michaels, Patrick J., professor of environmental sciences, 
      University of Virginia, and senior fellow in environmental 
      studies at Cato Institute; Keith E. Idso, vice president, 
      Center for the Study of Carbon Dioxide and Global Change; 
      and Christopher B. Field, staff scientist, Carnegie 
      Institution of Washington, and professor of biological 
      sciences, Stanford University..............................    78
Letters, statements, et cetera, submitted for the record by:
    Calvert, Hon. Ken, a Representative in Congress from the 
      State of California:
        Letter dated October 5, 1999.............................    65
        Prepared statement of....................................     8
    Field, Christopher B., staff scientist, Carnegie Institution 
      of Washington, and professor of biological sciences, 
      Stanford University, prepared statement of.................    99
    Glaser, Peter, esq., Shook, Hardy, and Bacon, prepared 
      statement of...............................................    29
    Guzy, Gary S., General Counsel, U.S. Environmental Protection 
      Agency, prepared statement of..............................    14
    Huffman, James, dean, Lewis and Clark Law School, prepared 
      statement of...............................................    51
    Idso, Keith E., vice president, Center for the Study of 
      Carbon Dioxide and Global Change, prepared statement of....   106
    McIntosh, Hon. David M., a Representative in Congress from 
      the State of Indiana, prepared statement of................     4
    Michaels, Patrick J., professor of environmental sciences, 
      University of Virginia, and senior fellow in environmental 
      studies at Cato Institute, prepared statement of...........    81
    Miller, Jeffrey G., professor of law, Pace University School 
      of Law, prepared statement of..............................    46

 IS CO2 A POLLUTANT AND DOES EPA HAVE THE POWER TO REGULATE 
                                  IT?

                              ----------                              

                       WEDNESDAY, OCTOBER 6, 1999

        House of Representatives, Subbcommittee on National 
            Economic Growth, Natural Resources, and 
            Regulatory Affairs, Committee on Government 
            Reform, joint with the Subcommittee on Energy 
            and Environment, Committee on Science,
                                                    Washington, DC.
    The subcommittees met, pursuant to notice, at 2:39 p.m., in 
room 2247, Rayburn House Office Building, Hon. David M. 
McIntosh (chairman of the Subcommittee on National Economic 
Growth, Natural Resources, and Regulatory Affairs) presiding.
    Present from the Subcommittee on National Economic Growth, 
Natural Resources, and Regulatory Affairs: Representatives 
McIntosh, Barr, and Kucinich.
    Present from the Subcommittee on Energy and Environment: 
Representatives Calvert, Costello, and Ehlers.
    Staff present from the Subcommittee on National Economic 
Growth, Natural Resources, and Regulatory Affairs: Marlo Lewis, 
Jr., staff director; Barbara F. Kahlow and Joel Bucher, 
professional staff members; Jason Hopfer, counsel; Gabriel Neil 
Rubin, clerk; Elizabeth Mundinger, minority counsel; and Earley 
Green, minority staff assistant.
    Staff present from the Subcommittee on Energy and 
Environment: Harlan Watson, staff director; Rob Hood and Jean 
Fruci, professional staff members; Jeff Donald, staff 
assistant; and Marty Ralston, minority staff assistant.
    Mr. McIntosh. The subcommittees shall come to order.
    First, let me say thank you to my colleague from California 
for co-chairing today's hearing. This should be a thought-
provoking and indepth hearing, since we will be examining 
questions that go to the heart of the debate about the Kyoto 
Protocol and the administration's climate change policies. 
These questions are: Is carbon dioxide a pollutant, and does 
EPA have the power to regulate it?
    The central premise of both the Kyoto Protocol and the 
administration's policies is the theory of catastrophic global 
warming. According to this theory, the buildup of greenhouse 
gases--principally CO2 from fossil fuel combustion--
will enhance the greenhouse effect, warm the Earth's 
atmosphere, and, thus, potentially, or even probably, increase 
the frequency and severity of extreme weather events, 
accelerate sea level rise, and spread tropical diseases.
    More simply put, Kyoto proponents contend that 
CO2--a clear, odorless gas and the fundamental 
nutrient of the planetary food chain--is, in fact, a pollutant. 
Administration officials, for example, often say their policies 
are needed to combat ``greenhouse pollution.''
    The hypothesis that CO2 emissions constitute 
greenhouse pollution draws it strongest support from 
mathematical simulations of the global climate system, known as 
the general circulation models. Now, although impressive in 
their complexity, the models repeatedly fail to replicate 
current and past climate; and as computing power and modeling 
techniques have improved, the amount of projected global 
warming has declined. The empirical side of the issue is much 
clearer. Hundreds of laboratory and field experiments show that 
nearly all trees, crops, and other plants raised in 
CO2-enriched environments grow faster, stronger, and 
with greater resistance to temperature and pollution stress.
    So, to borrow a well-known phrase from the UN's 
Intergovernmental Panel on Climate Change, today's hearing will 
consider where the ``balance of evidence'' lies. Does the 
balance of scientific evidence suggest that CO2 
emissions are endangering public health, welfare, and the 
environment?
    The subcommittee will also examine whether EPA has the 
power under the Clean Air Act to regulate CO2. EPA 
claims that it does have such authority, most notably in former 
EPA General Counsel Jonathan Cannon's April 10, 1998 
memorandum, entitled, ``EPA's Authority to Regulate Pollutants 
from Electric Power Generation Sources.''
    The Cannon memorandum was, and remains, controversial. In 
his appearance before our subcommittee, he reasserted that 
power to regulate CO2. Regulating CO2 to 
curb greenhouse pollution is the sum and substance of the Kyoto 
Protocol. So, the Cannon memorandum implies that EPA already 
has the power to implement Kyoto-style emission reduction 
targets and timetables, as if Congress, when it enacted and 
amended the Clean Air Act, tacitly ratified the Kyoto Protocol 
in advance.
    Several questions spring to mind, which I trust we will 
explore today. First, does the Clean Air Act expressly confer 
on EPA the power to regulate CO2? On an issue of 
longstanding controversy like global warming, is it even 
conceivable that Congress would have delegated to EPA the power 
to launch a vast new regulatory program, a program potentially 
costing hundreds of billions of dollars, without ever saying so 
in the text of the statute? The Clean Air Act mentions 
CO2 and global warming only in the context of non-
regulatory activities such as research and technology 
development. How then can EPA claim that the act clearly and 
unambiguously provides the authority to regulate 
CO2?
    Second, does CO2 fit into any of the regulatory 
programs already established under the Clean Air Act? The 
Cannon memorandum suggests, for example, that EPA may regulate 
CO2 emissions under the National Ambient Air Quality 
Standards [NAAQS] program. But that program was designed to 
address local air quality problems, not a global phenomenon 
like the greenhouse effect. If EPA were to set a NAAQS for 
CO2, for example, that is below the current 
atmospheric level, the entire United States would be out of 
attainment. Every community within the United States would be 
out of attainment if that NAAQS standard were adopted. Even if 
every factory and power plant were to shut down, this would 
continue to be the case because it is a global phenomenon.
    Conversely, if EPA were to set a NAAQS standard that is 
above the current level, the entire country would be in 
attainment, even if CO2 emissions suddenly doubled 
in many of our communities. So NAAQS is not a tool well-crafted 
to attack the problem of global warming. The attempt to 
regulate CO2 through the NAAQS program would appear 
to be an absurd and futile exercise. This suggests that 
Congress, when it enacted the program, never intended EPA to 
regulate CO2.
    The third question that I have, does the legislative 
history of the Clean Air Act Amendments of 1990 expressly 
support or, in fact, contradict EPA's claim of authority to 
regulate CO2? Some may argue that Congress' 
deliberate rejection of greenhouse gas regulatory provisions in 
the 1990 amendments is irrelevant, because declining to mandate 
such regulation is not the same as prohibiting it. But this is 
tantamount to saying that EPA has whatever authority Congress 
does not expressly withhold. That is simply turning the entire 
principle of administrative law on its head. Under our system 
of government, agencies only have the powers that Congress 
specifically delegates to them.
    The Clean Air Act is a carefully structured statute with 
specific titles that create specific regulatory programs to 
accomplish specific objectives. It is not a regulatory blank 
check. EPA contends that CO2 falls within the Clean 
Air Act's formal or technical definition of ``pollutant`` as a 
substance that is ``emitted into or otherwise enters the 
ambient air.`` But this hardly suffices to settle the question 
of whether Congress designed and intended any of the Clean Air 
Act's regulatory programs to encompass CO2.
    Before I turn over the proceedings to Chairman Calvert, I 
would like to welcome our witnesses. Representing the Clinton 
administration on the question of EPA's legal authority is EPA 
General Counsel Gary Guzy. Welcome, Mr. Guzy. I appreciate your 
willingness to step up to the plate and address these tough 
questions. Mr. Peter Glaser, of the law firm of Shook, Hardy, 
and Bacon; Professor James Huffman, who is Dean of the Lewis 
and Clark Law School; and Professor Jeffrey Miller of Pace 
University School of Law will also speak to the question of 
EPA's legal authority. Thank you, gentlemen, for participating 
in this forum.
    I would also like to welcome the members of the scientific 
panel: Dr. Patrick Michaels, professor of Environmental 
Sciences at the University of Virginia and senior fellow in 
Environmental Studies at Cato Institute; Dr. Keith Idso, vice 
president of the Center for the Study of Carbon Dioxide and 
Global Change; and Dr. Chris Field, who is a staff scientist at 
the Carnegie Institution.
    With that, let me turn over the opening statement to Mr. 
Calvert. Welcome. I really appreciate your effort to make this 
a joint hearing.
    [The prepared statement of Hon. David M. McIntosh follows:]
  

    [GRAPHIC] [TIFF OMITTED] T2900.001
    
    [GRAPHIC] [TIFF OMITTED] T2900.002
    
    [GRAPHIC] [TIFF OMITTED] T2900.003
    
    Mr. Calvert. I would like to thank the gentleman from 
Indiana, Mr. McIntosh, for his interest and willingness to host 
this hearing between our two subcommittees. And I want to thank 
my good friend Mr. Costello from Illinois for attending also. I 
would also like to thank our witnesses today for their 
participation in this hearing.
    Mr. Chairman, with the number of witnesses before us today, 
I will keep my remarks brief, in hopes that we will have ample 
time for questions.
    A core premise of the United Nations Framework Convention 
on Climate Change, the Kyoto Protocol, and the Clinton-Gore 
administration's Climate Change Technology Initiative is the 
theory that atmospheric buildup of greenhouse gases, 
principally carbon dioxide, caused by burning fossil fuels will 
destabilize the Earth's climate and trigger all manner of 
catastrophic events.
    The Kyoto Protocol sets specific targets and timetables for 
a basket of six greenhouse gases, including CO2, 
and, if ratified by the United States and entered into force, 
requires the United States to reduce its net emissions by 7 
percent below the 1990 levels in the 2008-2012 timeframe. I 
might note that the Science Committee has held numerous 
hearings on this in the past 2 years on the Protocol, and knows 
its real story--energy use will be more expensive, economic 
growth will be jeopardized, and American families will pay 
dearly for a flawed treaty. The administration has tried hard 
to gloss over the U.N. treaty's fatal flaws, but it cannot 
sugarcoat the harsh realities that it would inevitably bring to 
our economy and to our way of life.
    The administration has repeatedly stated that it has no 
intention of implementing the Protocol prior to its 
ratification, with the advice and consent of the Senate. 
However, the April 10, 1998 legal opinion by then EPA General 
Counsel Jonathan Cannon that the Clean Air Act authorizes EPA 
to regulate CO2 has triggered concern about a 
possible ``backdoor'' implementation of this Protocol, a 
concern which I share, and I am sure everyone here is concerned 
about. In fact, EPA's sweeping interpretation of its powers 
under the Clean Air Act would allow it also to regulate other 
greenhouses gases, such as methane or even water vapor and 
clouds, which account for about 96 percent of the greenhouse 
effect.
    The EPA opinion also notes that before it can issue 
regulations governing a pollutant under the Clean Air Act, the 
EPA Administrator must make a determination that the pollutant 
is ``reasonably anticipated to cause or contribute to adverse 
effects on public health, welfare, or the environment.''
    I am looking forward to today's testimony from our panel of 
legal experts on the EPA opinion, as well as from our 
scientific panel who will address the questions of whether man-
made emissions of CO2 also adversely affect public 
health, welfare, or the environment.
    With that, Mr. Chairman, I would yield back the balance of 
my time.
    [The prepared statement of Hon. Ken Calvert follows:]
    [GRAPHIC] [TIFF OMITTED] T2900.004
    
    [GRAPHIC] [TIFF OMITTED] T2900.005
    
    Mr. McIntosh. Thank you, Mr. Calvert. Again, I do 
appreciate your joining us and co-chairing this hearing. And at 
certain points, because I have a markup over in Education, I 
will be calling on you to chair this for us. I appreciate that.
    Let me now turn to Mr. Costello. Would you like to make an 
opening statement?
    Mr. Costello. Mr. Chairman, I have a brief opening 
statement. Like you, I will have to leave in just a minute, so 
I trust that your ranking member will be here shortly.
    Mr. Chairman, I thank you and my good friend from 
California, Chairman Calvert for calling the hearing today. I 
think by now we are all familiar enough with the Clean Air Act 
and its many provisions to at least suspect that it provides 
the EPA with the authority to regulate carbon dioxide. However, 
at this point, it is less important than the question of 
whether the information we have at this point in time indicates 
that carbon dioxide is actually causing harm to humans or to 
our environment. I do not believe that this test has been met.
    The Congress and the administration have both indicated, 
and I adamantly agree, that the Kyoto Protocol should not be 
implemented prior to its ratification by the Senate. I believe 
we are all clear on that point. Therefore, I believe that we 
should be engaged in more positive pursuits than debating 
authorities under the Clean Air Act.
    It is in our national interest to look for ways to utilize 
energy resources more efficiently and to develop alternative 
energy resources that we will need in the future. We also 
should continue to develop a better understanding of all 
variables that affect local climate on both short and long-term 
scales. Increased greenhouse gases may be changing our climate. 
However, regardless of whether they are changing our climate or 
not, we need to understand climate phenomenon and their 
relationship to regional weather patterns and the effect on the 
frequency and intensity of storms or droughts. This information 
is vital for disaster preparedness and understanding impacts on 
weather-dependant sectors, such as agriculture. I hope we can 
move beyond the climate change debate to working on policies 
that benefit our constituents.
    I thank all of the witnesses for being here today. I look 
forward to hearing their testimony.
    Mr. Chairman, with that, I yield back the balance of my 
time.
    Mr. McIntosh. Thank you, Mr. Costello, and thank you for 
joining us. Undoubtedly, Mr. Kucinich is also over in the 
Education Committee markup, since we both serve on that 
committee as well.
    Let me call our first panel of witnesses. I would ask each 
of you to summarize any prepared statement you have in 
approximately 5 minutes or so, and then we will be able to put 
your entire remarks into the record.
    One of the policies that Chairman Burton has asked all of 
the subcommittees of the Committee on Government Reform to do 
is to swear in our witnesses. So, if all of you would please 
rise.
    Do you solemnly swear that the testimony you will give 
today is the truth, the whole truth, and nothing but the truth?
    [Witnesses sworn.]
    Mr. McIntosh. Thank you. Let the record show that each of 
the members of the first panel answered in the affirmative.
    Mr. Guzy, welcome. Thank you for coming today. Please share 
with us your testimony.

STATEMENTS OF GARY S. GUZY, GENERAL COUNSEL, U.S. ENVIRONMENTAL 
  PROTECTION AGENCY; JAMES HUFFMAN, DEAN, LEWIS AND CLARK LAW 
   SCHOOL; PETER GLASER, ESQ., SHOOK, HARDY, AND BACON; AND 
JEFFREY G. MILLER, PROFESSOR OF LAW, PACE UNIVERSITY SCHOOL OF 
                              LAW

    Mr. Guzy. Thank you, Chairman McIntosh, Chairman Calvert, 
and members of the subcommittee, for the invitation to appear 
here today. I am pleased to have the opportunity to explain the 
U.S. Environmental Protection Agency's views as to the legal 
authority provided by the Clean Air Act to regulate emissions 
of carbon dioxide.
    Before I do, however, I would like again to stress, as has 
been noted, that the administration has no intention of 
implementing the Kyoto Protocol to the United Nations Framework 
Convention on Climate Change prior to its ratification with the 
advice and consent of the Senate.
    Some brief background information may be helpful to 
understand the context for the question of legal authority 
posed by the subcommittee in this hearing. In the course of 
generating electricity by burning fossil fuels, electric power 
plants emit into the air multiple substances that pose 
environmental concerns. Some of these are already subjected to 
some degree of regulation. EPA has worked with a broad array of 
interested parties to evaluate multiple pollutant control 
strategies for this industry, and has also conducted an 
analysis of the scope of Clean Air Act authority to accomplish 
these. These have arisen in a series of forums dating back to 
the Clean Air Power Initiative in the mid-1990's, and in 
developing the administration's electric utility industry 
restructuring proposals.
    On March 11, 1998, during hearings on EPA's fiscal year 
1999 appropriations, Representative DeLay asked Administrator 
Browner about reports that EPA claimed it had authority to 
regulate emissions of pollutants of concern from electric 
utilities, including carbon dioxide. The Administrator replied 
that the Clean Air Act provides such authority, and agreed to 
supply to Representative DeLay a legal opinion on that point. 
Therefore, my predecessor, Jon Cannon, prepared a legal opinion 
for the Administrator on the question of EPA's legal authority 
to regulate several pollutants. The legal opinion, which I 
endorse, requested by Representative DeLay, was completed in 
April 1998, and it addressed EPA's Clean Air Act authority to 
regulate emissions of four pollutants of concern from electric 
power generation--nitrogen oxides, sulfur dioxide, mercury, and 
carbon dioxide. I will summarize the conclusions only as they 
relate to carbon dioxide. But let me emphasize that this 
analysis is largely theoretical. EPA currently has no plans to 
regulate carbon dioxide as an air pollutant, and, despite 
statement by others to the contrary, we have not proposed to 
regulate CO2.
    The Clean Air Act includes a definition of the term ``air 
pollutant'' which is the touchstone of EPA's regulatory 
authority over emissions. Section 302(g) defines air pollutant 
as ``any air pollution agent, or combination of agents, 
including any physical, chemical, biological, radioactive 
``substance or matter which is emitted into or otherwise enters 
the ambient air.'' The opinion noted that CO2 thus 
would be an air pollutant within the Clean Air Act's 
definition. Perhaps most telling to me, Congress explicitly 
recognized emissions of CO2 from stationary sources, 
such as fossil fuel power plants, as an ``air pollutant`` in 
section 103(g) of the act. That section authorizes EPA to 
conduct a basic research and technology program to include, 
among other things, ``improvements in non-regulatory strategies 
and technologies for preventing or reducing multiple air 
pollutants, including sulfur dioxides, nitrogen oxides, and 
carbon dioxide,'' among others.
    The opinion explains further that the status of 
CO2 as an air pollutant is not changed by the fact 
that it is found in the natural atmosphere. Congress specified 
regulation in the Clean Air Act of a number of naturally 
occurring substances as air pollutants because human activities 
have increased the quantities present in the air to levels that 
are harmful to public health, welfare, or the environment. For 
example, sulfur dioxide is emitted from geothermal sources; 
volatile organic compounds, which are precursors to harmful 
ground-level ozone, are emitted by vegetation; and some 
substances specified by Congress as hazardous air pollutants 
are actually necessary in trace quantities for human life but 
are toxic or harmful at levels higher than found ordinarily or 
through other routes of exposure. Phosphorus, manganese, and 
selenium, these are examples of such pollutants.
    While carbon dioxide as an air pollutant is within the 
scope of regulatory authority provided by the Clean Air Act, 
this by itself does not lead to regulation. Before EPA can 
actually issue regulations through a rulemaking process 
governing a pollutant, the Administrator first must make a 
formal finding that the pollutant in question meets specific 
criteria laid out in the act. Many of these provisions share a 
common feature, in that the exercise of EPA's authority to 
regulate air pollutants is linked to a determination by the 
Administrator regarding the air pollutant's actual or potential 
harmful effects on public health, welfare, or the environment. 
This is true for authority under section 109 of the act to 
establish National Ambient Air Quality Standards.
    By the way, section 302(h), a provision dating back to the 
1970 version of the Clean Air Act, defines ``welfare,'' for 
purposes of secondary effects, as including ``effects on soil, 
water, crops, vegetation . . . weather, visibility, and 
climate,'' among others. So, that since 1970, the Clean Air Act 
has included effects on climate as a factor to be considered in 
the administration's decision as to whether to list an air 
pollutant under section 108. Analogous threshold findings are 
required before the Administrator may establish new source 
performance standards under section 111, or list and regulate a 
pollutant as hazardous under section 112.
    Given the clarity of the statutory provisions defining air 
pollutants and providing authority to regulate them, there is 
no statutory ambiguity that could be clarified by reference to 
legislative history. Nevertheless, Congress' decision in the 
1990 amendments not to adopt additional provisions directing 
EPA to regulate greenhouse gases by no means suggests an 
intention to limit pre-existing authority to address any air 
pollutant that the Administrator determines meets the statutory 
criteria for regulation under a specific provision of the act.
    Let me reiterate one of the central conclusions of the EPA 
memorandum. ``While CO2, as an air pollutant is 
within EPA's scope of authority to regulate, the Administrator 
has not yet determined that CO2 meets the criteria 
for regulation under one or more provisions of the Act.'' That 
statement remains true today. EPA has not made any of the act's 
threshold findings that would lead to regulation of 
CO2 emissions from electric utilities, or any 
source. Is it well-crafted, as Chairman McIntosh asked, to this 
goal? I would just point out the second finding of the EPA 
memo, that existing authority does not easily lend itself to a 
cost-effective mechanism, to impose a cap and trade program, 
and the administration is pledged to consult with Congress on 
the best mechanisms for doing so.
    I also wish to stress once more that while EPA will pursue 
efforts to address the threat of global warming through the 
voluntary programs authorized and funded by Congress, and will 
carry out other mandates of the Clean Air Act, this 
administration has no intention of implementing the Kyoto 
Protocol prior to its ratification on the advice and consent of 
the Senate.
    This concludes my prepared remarks. I ask that my full 
statement be submitted for the record, and would be pleased to 
answer any questions that the subcommittees may have. Thank 
you.
    [The prepared statement of Mr. Guzy follows:]
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    Mr. McIntosh. Thank you, Mr. Guzy. And there being no 
objection, your full statement will be included in the record, 
as will the full statements of all our witnesses.
    Our second witness will be Mr. Glaser.
    Mr. Glaser. Thank you, Mr. Chairman. My name is Peter 
Glaser. I am an attorney in the Washington, DC office of the 
law firm of Shook, Hardy, and Bacon. I have represented clients 
on the subject of potential global climate change over the last 
10 years.
    My testimony today examines the question: Does the U.S. 
Environmental Protection Agency currently have authority to 
regulate carbon dioxide emissions under the Clean Air Act or 
other statute? My analysis is set forth in the written version 
of my testimony, and, in more detail, my analysis is reflected 
in opinion of the National Mining Association dated October 12, 
1998, and available on NMA's website.
    Based on my analysis, I would conclude that Congress did 
not delegate authority to EPA to regulate carbon dioxide 
emissions. EPA, of course, takes the opposite view. It seems to 
be EPA's thesis that because CO2 is emitted into the 
air, it must be an air pollutant, and that if the Administrator 
finds that carbon dioxide endangers the public health or 
welfare or the environment, then various provisions of the act, 
none of which mention carbon dioxide, could be invoked to 
regulate the substance. But the factual or technical issue of 
whether carbon dioxide endangers health, welfare, or the 
environment is only the beginning of the analysis of the legal 
question of whether EPA has the regulatory authority that the 
Agency claims. I defer to members of the Science Panel to 
present the case that carbon dioxide emissions are not a threat 
to America or the globe. If such threat does not exist, then 
even EPA would agree it has no authority to regulate greenhouse 
gas emissions.
    My analysis shows that even assuming for the sake of 
argument that carbon dioxide emissions do present a danger to 
health, welfare, or the environment, EPA nevertheless could not 
regulate those emissions. Why not? Because Congress, very 
simply, did not give EPA the power to do so in the Clean Air 
Act or other statute. Given the far-reaching consequences 
carbon dioxide regulation poses to our society, and given the 
uncertain science of global warming, Congress reserved the 
power to itself to determine in the future whether or not to 
authorize restrictions on CO2 emissions.
    In brief, my analysis includes the following elements. We 
first examined the language of the Clean Air Act and found no 
explicit authorization to regulate carbon dioxide emissions. 
Such emissions are addressed only in non-regulatory portions of 
the act. Given that regulation of carbon dioxide would have 
major consequences for all sectors of the economy, the fact 
that Congress never expressly gave EPA the authority to 
regulate such emissions is highly convincing of Congress' 
intent not to do so.
    I next examined various sections of the Clean Air Act to 
determine whether Congress may have implicitly given EPA 
authority to regulate carbon dioxide emissions. No such 
authority exists. There is simply no rational way that I can 
figure out to regulate a global phenomenon such as global 
climate change under the National Ambient Air Quality 
Standards. EPA admits that the NAAQS do not, I think the 
testimony was, ``do not easily lend themselves to regulation.'' 
I would say that the NAAQS do not in any way lend itself to 
regulation, and that reflects Congress' intent not to regulate 
carbon dioxide under the NAAQS.
    Similarly, the regulation of carbon dioxide does not fit 
within the sections of the act dealing with new source 
performance standards, hazardous air pollutants, or 
transboundary air pollution.
    We then examined the legislative history of the Clean Air 
Act. As we know, Congress rejected a provision to regulate 
carbon dioxide emissions when enacting the Clean Air Act 
Amendments of 1990. As the Supreme Court has emphasized, ``few 
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.''
    Finally, we examined other congressional activity dealing 
with potential global climate change to attempt to discern an 
intent to regulate or not to regulate carbon dioxide emissions. 
Congress has dealt with climate change issues at least since 
the late 1970's and has enacted a number of items of 
legislation dealing with this subject. Yet, all of the 
legislation enacted has been non-regulatory, including Senate 
ratification of the purely voluntary Framework Convention on 
Global Climate Change, and, of course, the Framework Convention 
on Climate Change Amendment, the Kyoto Protocol proposed 
amendment has not been submitted to the Senate for 
ratification. It is just not possible to square this long 
history of congressional rejection of greenhouse gas 
restrictions with EPA's claim today of discretion to issue far-
reaching regulations.
    In conclusion, there is no more axiomatic provision of 
administrative law than that the authority of government 
agencies is limited to the authority granted them by Congress. 
This principle was confirmed recently by the U.S. Court of 
Appeals for the D.C. Circuit in the American Trucking 
Associations case, striking down EPA's recently promulgated 
NAAQS for ozone and particulate matter. EPA's claim that it may 
regulate carbon dioxide is an extraordinary attempt by the 
Agency to arrogate to itself power to control virtually all 
facets of the American economy. It is simply not believable 
that Congress would have granted EPA this power without ever 
explicitly having said so.
    That concludes my oral remarks, Mr. Chairman. I do have 
written remarks for the record.
    [The prepared statement of Mr. Glaser follows:]
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    Mr. McIntosh. Thank you very much, Mr. Glaser. Your remarks 
will be included in the record.
    Our third witness will be Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman. I am pleased to be 
here, and thank the two Chairs and the Members for inviting me. 
I have very little to add to what Mr. Guzy has said with regard 
to whether CO2 is a pollutant or could be a 
pollutant under the Clean Air Act. The definition is very 
broad, almost anything can fit within it. The definition 
contains no limitations; it does not exclude CO2, 
and nothing anywhere else in the act excludes it.
    I should mention that those broad types of jurisdictional 
provisions were not unusual in the legislation of the early 
1970's. In the Clean Water Act, for instance, there is a very 
broad definition of pollutant as well. The courts have held 
``pollution'' there to include sand, dead fish, natural 
material from streambeds and banks, and even chlorine that is 
added to drinking water reservoirs for purification purposes.
    Under the Clean Water Act, it is a little worse than under 
the Clean Air Act from the polluter's perspective, because the 
discharges of a pollutant without a permit are illegal without 
any regulatory activity on EPA's part. Under the Clean Air Act, 
pollutants may be emitted into the air unless EPA takes 
regulatory action to regulate them, which it has not done for 
CO2. So the two-part determination that EPA must 
make to regulate under the Clean Air Act--the first being that 
we're dealing with an air pollutant, and the second, that the 
pollutant has adverse effects on health or welfare--the first I 
think is almost pro forma, the second is far more difficult and 
EPA has not attempted that here.
    I would like to just mention a few of the points which have 
been made which may be a little misleading. It has been 
contended, for instance, that sections 108 and 109 would not 
authorize CO2 to be regulated under the National 
Ambient Air Quality Standard provisions because it is not 
mentioned. If that is the case, EPA has no authority to 
regulate anything under those provisions because they do not 
mention any pollutants. Second, it has been said that the fact 
that most of the pollutants that EPA regulates as National 
Ambient Air Quality Standards are particularly mentioned or 
listed in sections 171 to 193, which is a congressional 
direction for EPA to regulate those pollutants. This is a 
little miscast as well. Those sections did not come about until 
EPA had already listed those pollutants as criteria pollutants 
and had regulated them for years. Sections 171 to 193 nowhere 
hint that CO2 is not a pollutant or should not be 
regulated by EPA.
    It has been argued that the SIP process is not appropriate 
for controlling CO2 because CO2 is a 
global rather than a local pollutant. That is an interesting 
point. I think we need to step back and recognize that the 
pollutants that are regulated from this system are on a 
spectrum, from very local pollutants like carbon monoxide, to 
very long-range pollutants like ozone or sulfur oxides, which 
are international. The SIP process has been best at controlling 
local pollution and has not been nearly as good at controlling 
transboundary pollution, which is why Congress has had to grant 
additional authority, for instance, for controlling acid rain. 
But that does not mean that the SIP process is useless in 
addressing long-range pollutants. Indeed, it has been.
    Of course, EPA, if it undertakes listing of CO2, 
or any other pollutant, as a criteria pollutant, must accompany 
that with information about what the States can do about it, 
what industry can do about, how emissions can be curtailed. 
Unless it can do that, it would not be appropriate for EPA to 
go down that route. The fact that there is not a lot of 
technology available right now to control emissions of 
CO2 is perhaps not entirely true or entirely 
relevant. There are technologies which increase the efficiency 
of electric generation, for instance. That has the direct 
effect of controlling CO2 emissions. If you produce 
more kilowatt hours out of burning the same number of BTUs, you 
have produced the same number of BTUs with lesser emissions of 
CO2. It should not be forgotten that the Clean Air 
Act, as it was originally conceived, was a technology-forcing 
statute. When it was enacted in 1970, the automobile companies, 
under oath before Congress, said that there was no technology 
to address curtailment of emissions from automobiles. Well, 
guess what? It did not take very long to come up with that 
technology when their feet were held to the fire. So it may 
well be possible that appropriate technologies could be 
developed here.
    Finally, the argument that the Congress rejected a 1970 
Senate bill requiring EPA to take a variety of measures to 
curtail greenhouse gases does seem to be a bit of a non 
sequitur. Since it did require EPA to take action on a broad 
array of pollutants, not just CO2, its defeat does 
not necessarily tell us what Congress would have done with a 
narrow CO2 bill. Defeating a requirement for EPA to 
take action is not the same thing as saying EPA cannot take 
action. I think, with regard to that, we should remember the 
admonitions of Justice Scalia, who is one of our leading 
thinkers these days on statutory interpretation. He tells us 
that we must start with the text and that is where we should 
end up. The legislative history is not a good guide to what the 
text of a statute tells us. Rejected legislation tells us very 
little about the meaning of enacted legislation, and the 
failure of the legislature to enact legislation in a different 
era tells us very little about what was intended by the 
Congress that enacted the legislation. We are talking, in the 
terms of 108, 109, 110, 111, these other basic provisions, 
about things that were enacted back in 1970. Congress might not 
enact them the same way today, but we are dealing with what was 
enacted in 1970.
    Thank you very much.
    [The prepared statement of Mr. Miller follows:]
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    Mr. McIntosh. Thank you for your testimony, Mr. Miller.
    Our final witness on this panel is Mr. Huffman.
    Mr. Huffman. Thank you, Mr. Chairman. My name is James 
Huffman. I am professor of law and Dean at Lewis and Clark Law 
School in Portland, OR. I have taught constitutional law and 
natural resources law for 25 years.
    My conclusion on the subject of these hearings is that EPA 
regulation of carbon dioxide pursuant to the Clean Air Act is 
unauthorized and would constitute a clear violation of the 
fundamental constitutional principle of separation of powers.
    Assuming, for the sake of argument, that regulation of 
carbon dioxide emissions is a good idea from a policy 
perspective, it does not follow that EPA has the authority to 
enact such regulations. While the framers of our Constitution 
undertook to create a government that could provide for the 
public welfare, they were even more concerned to create a 
government that was constitutionally limited and constrained. 
Pursuant to the principle of separation of powers, only 
Congress has the authority within clearly defined 
constitutional limits to determine which good ideas will become 
government policy in law. Absent expressed statutory 
authorization, there are important and, indeed, fundamental 
constitutional reasons to insist that EPA does not have 
authority to regulate carbon dioxide.
    We are not concerned here with an isolated toxic substance 
which Congress might have overlooked in the construction of its 
regulatory scheme. To the contrary, we are concerned with one 
of the most plentiful compounds in the Earth's atmosphere, the 
regulation of which will have dramatic and long-reaching 
effects for all Americans. Under these circumstances, the core 
values of our constitutional democracy require that Congress 
make the monumental decision, which the EPA would, if it 
regulated CO2, appropriate to itself.
    In the current administration, some departments of the 
government have been particularly aggressive in reaching beyond 
their enabling legislation to pursue an agenda which Congress 
has not embraced. The Department of Interior has claimed 
authority to implement ecosystem management in legislation 
enacted before the idea of ecosystem management was even 
conceived. The Department of Agriculture has just this week 
issued proposed regulations which, in the words of their press 
release, would ``create a new vision for national forest 
planning.'' EPA's regulation of carbon dioxide would be a 
similar over-reaching.
    Notwithstanding Mr. Guzy's protestations to the contrary, 
there seems little doubt that the administration's objective is 
to move the United States toward compliance with the 
objectives, if not the explicit standards, of the Kyoto 
Protocol, and I would note the statements from the two leading 
figures in the administration to my left. Treaties do not 
become the law of the land without the consent of two-thirds of 
the members of the U.S. Senate. The super majority is required 
because the framers believed that committing the United States 
to agreements with foreign nations is of particular moment. It 
is, therefore, doubly offensive to the principle of separation 
of powers for the Executive who has negotiated a treaty to 
propose regulations designed to implement that treaty without 
the Senate's consent and without any implementing legislation 
approved by the Congress.
    Every Member of Congress, including those Members of the 
Senate favoring ratification of the Kyoto Protocol, should be 
resolute in their opposition to unauthorized EPA regulations 
designed to implement standards of that unratified 
international agreement. It is horn book constitutional law 
that our government is one of limited and divided powers.
    The recent D.C. Circuit Court of Appeals decision in 
American Trucking, which Mr. Glaser has mentioned, is of 
central relevance to the question before these committees. At 
issue in American Trucking was whether or not EPA had acted 
within its authority in setting new standards for particulate 
and ozone ambient air quality. The court acknowledged in that 
opinion that, unlike carbon dioxide, EPA has expressed 
statutory authority to regulate ozone and particulates, but 
concluded that ``EPA has failed to state intelligibly how much 
is too much.'' ``It was,'' said the court, ``as if Congress 
commanded EPA to select big guys, and EPA announced that it 
would evaluate candidates on height and weight but revealed no 
cutoff point.'' EPA's regulation of carbon dioxide would be 
even less well-rooted in the language and legislative history 
of the Clean Air Act. To paraphrase the American Trucking 
opinion, it is as if Congress commanded EPA to protect health, 
and EPA announced that it would regulate anything which might 
affect health but revealed no standards for assessing whether 
the net effects were positive or negative. The court's decision 
in American Trucking is surely correct.
    The Congress should not depend upon the courts to protect 
its constitutionally defined power from usurpation by 
administrative agencies. The American Trucking opinion is 
something of an aberration in nearly three-quarters of a 
century of judicial deference to expanding power in the Federal 
bureaucracy. Indeed, critics of the circuit court's decision 
have been quick to suggest that the non-delegation doctrine was 
generally thought to have gasped its last breath in Schecter 
Poultry in 1935. Perhaps American Trucking marks the beginning 
of the revival of the non-delegation doctrine. But even in that 
event, Congress has a responsibility to jealously guard its 
authority, not for the sake of power, but for the sake of the 
liberties of Americans which depend upon adherence to the 
principle of separation of powers. Separation of powers is not 
just a simple matter of government organization or of 
convenience. It is a fundamental principle of American 
constitutional law, as important to the protection of private 
and public liberty as the Bill of Rights.
    It is surely fair to assume that EPA is motivated to serve 
the public good in everything it does, including its proposed 
regulation of carbon dioxide. But good intentions do not 
satisfy the standards of the Constitution. If carbon dioxide 
emissions are of sufficient concern to warrant Federal 
regulation, it is not asking too much that Congress provide the 
authorization required by the Constitution. Thank you.
    [The prepared statement of Mr. Huffman follows:]
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    Mr. McIntosh. Thank you, Mr. Huffman. I appreciate your 
remarks. As I said, the complete written text of all of your 
testimony will be put into the record.
    I have a couple of questions and then we will recognize my 
fellow panelists. First, Mr. Guzy, you had mentioned the 
general provision on pollutants in section 302(g), and then to 
bolster a very broad interpretation of what that is in the 
Cannon legal memorandum you cite section 103(g) as proof that 
CO2 is a pollutant within the meaning of the Clean 
Air Act because it is listed there. But in that same section 
Congress put into law ``Nothing in this subsection shall be 
construed to authorize the imposition on any person of 
pollution control requirements.'' Similarly, the provision in 
the Clean Air Act mentioning global warming, section 602(e) 
stipulates ``The preceding sentence shall not be construed to 
be the basis of any additional regulation under this chapter.''
    How do you interpret these congressional restrictions in 
using those subsections to bolster your argument about the 
general text?
    Mr. Guzy. Mr. Chairman, it is important to keep in mind why 
the memorandum cites 103(g)(1). It does not cite it, and I want 
to be very clear about this, as in and of itself statutory 
authority for regulation of CO2.
    Mr. McIntosh. I understand that it cites it to bolster the 
argument about section 302.
    Mr. Guzy. But what it does absolutely clearly is indicate 
that Congress regarded carbon dioxide as ``an air pollutant.'' 
And the limiting provisions that you have cited here, which 
basically say that nothing in this subsection shall be 
construed to authorize the imposition on any person of 
pollution control requirements, go to the question of do we 
have authority to draw from a technology and research program 
particular control requirements that could be imposed on 
sources.
    That's not the issue that we're citing 103(g) for. What 
we're citing it for is the clear congressional understanding 
that carbon dioxide from sources such as electric generating 
utilities, stationary sources such as that, can properly be 
regarded as an air pollutant and should be regarded as an air 
pollutant under the definitions of the act. That then gives 
rise to the next set of questions under the particular 
regulatory provision, the particular statutory provisions that 
we then would face were the administration to decide to move 
forward with that kind of an action.
    The question that you asked about section 602 also is not 
referenced in the memorandum as a source of authority for the 
general understanding of Congress that, in fact, carbon dioxide 
should, or could, be regarded as an air pollutant.
    And if I may, Mr. Chairman, make a few more general points. 
While Congress specified certain substances that are widespread 
in recognizing that there could be regulation as under the 
provisions for National Ambient Air Quality Standards, Congress 
also recognized that knowledge would change, knowledge would 
evolve. And so it also gave authority to the Administrator to 
designate new types of pollutants, as Ambient Air Quality 
Standards, as criteria air pollutants, the most fundamental 
that could be subject to a regulatory scheme. It also provided, 
I might add, a very elaborate regulatory process that the 
agency would need to go through were it to commence that type 
of work. And those standards constitute quite clear limiting 
principles for any future agency action.
    Mr. McIntosh. It strikes me as somewhat self-serving to 
select those parts where Congress explicitly says we don't 
intend to create regulatory authority, and then discount an 
explicit provision where regulatory authority was in fact 
rejected by Congress.
    Is there any substance that you know of that does not fit 
the definition of air pollutant that you are putting before us 
in section 302?
    Mr. Guzy. Again, I would refer the chairman also to the 
sort of next set of requirements that----
    Mr. McIntosh. No, no, no, no. Getting to that initial step, 
which is where you say we are at with carbon dioxide, is there 
any substance that would not meet that test?
    Mr. Guzy. I will concede that it is a very broad definition 
and there is an argument for just about any substance that it 
could be regarded as an air pollutant under that definition.
    Mr. McIntosh. That's what I thought. In which case, you are 
reading the act to be a general mandate for EPA to provide for 
health and welfare, because any substance qualifies under the 
first step, and you are saying Congress created, in the name of 
a Clean Air Act, a general regulatory authority for all 
substances if it affects health and welfare.
    Mr. Guzy. I would like to be a little bit more precise 
about it, Mr. Chairman. First of all, I was assuming that by 
your question you were referring to any substance which gets 
into the air, and I take that as a given. But that would be 
necessary to qualify under the definitional section in 302. But 
then the question that is faced, which is a fundamental 
question that EPA has not yet faced, is what regulatory scheme 
is it then potentially subject to. And there are very clear 
limitations in the act that would rule out all sorts of 
substances. I particularly refer you to section 108, where the 
substance has to cause or contribute to air pollution which may 
reasonably be anticipated to endanger, not just affect, 
endanger public health or welfare, and the presence has to 
result from numerous or diverse mobile or stationary sources. 
In other words, it is susceptible to the kind of regulatory 
scheme that Congress set forward in the 1970 act, and then 
again ratified in the later amendments.
    Mr. McIntosh. Let me ask Mr. Glaser, do you want to comment 
on this discussion?
    Mr. Glaser. Yes, absolutely. I think the focus on whether a 
substance is an air pollutant within this incredibly broad 
definition of anything emitted into the ambient air is somewhat 
of a red herring, for a number of reasons. First of all, it 
ignores some very, very basic principles of statutory 
construction, including that we do not make a fortress out of 
the dictionary, we don't engage in over-literalism, but in 
construing statutory language we try to view the language in 
light of the overall context and regulatory program in which 
the language is used. So it is not enough simply to say, well, 
it is emitted to the ambient air, therefore it must be an air 
pollutant, and therefore we can go ahead and regulate it if it 
causes danger.
    The question is, is it the type of air pollutant, is it the 
type of emission that Congress designed this statute to deal 
with? And we know what kinds of air pollutants this statute was 
designed to deal with. They are pollutants that are emitted to 
the air and are deposited and are breathed in by people and 
have a direct effect either on people or the environment. It is 
not fair, it is not correct to say that this statute was 
designed to deal with the type of emission, like carbon 
dioxide, which is emitted into the atmosphere and circulates 
globally in the troposphere and creates an indirect 
environmental impact in that sense. For that type of 
environmental impact, this act has no provisions that can deal 
with that. And that is the whole problem here.
    We heard an earlier witness say the act does not just deal 
with local pollution, it deals with regional transport or long-
range transport. It is absolutely true, the Clean Air Act has 
provisions that deal with wind-borne air pollution that blow 
pollutants downwind 50, 100, 200 miles. But that is not 
anything like carbon dioxide. Carbon dioxide is not an emission 
that goes in the air and it is blown downwind, in the sense 
that it is emitted in one area of the country and it is blown 
downwind and has an effect in another area of the country. One 
ton of carbon dioxide emitted in Kansas has the same overall 
impact on international global warming as a ton emitted in 
Bangladesh. So there is therefore no way that this structure 
created in this act can deal with it.
    The NAAQS, for instance, every State has to submit an 
implementation plan and that implementation plan has to provide 
how the State is going to get into attainment for the 
particular NAAQS. The State is required, mandated to come up 
with an attainment plan that will meet the NAAQS. Now, it is 
true that there are regional transport issues so that upwind 
States have to include in their implementation plans provisions 
to eliminate any contribution the upwind State may be making to 
downwind non-attainment. But that system has no rational 
application whatsoever to carbon dioxide. An earlier witness 
said it would be useful in some way. It is not even a question 
of being useful. It just does not fit. It is a round peg in a 
square hole and you cannot presume that Congress would have 
intended to provide a system of regulation that just cannot 
possibly work.
    So, in conclusion, I would simply say that to engage in 
this debate on what is or what may not be an air pollutant 
strictly within the terms of the Clean Air Act is pretty 
fruitless. The real question is what does the substance of the 
act say about dealing with a substance like carbon dioxide. And 
it is just not in there.
    Mr. Guzy. Mr. Chairman, may I just respond very quickly?
    Mr. McIntosh. Yes. And while you are doing that, I have got 
another quick question for you, which is, did you reevaluate 
the Cannon opinion in light of the American Trucking 
Association decision?
    Mr. Guzy. Yes. Let me just respond very quickly, if I may, 
to Mr. Glaser. I would just refer the subcommittees to a 
provision which has been in the act since 1970, was ratified 
again in 1977, remained in the act after the 1990 amendments, 
and that is section 302(h), which recognizes that welfare, the 
subject of secondary ambient air quality standards, can include 
effects on ``soils, water, crops, vegetation, man-made 
materials, animals, wildlife, weather, visibility, and climate, 
damage to and deterioration of property and hazard to 
transportation, as well as effects on economic values and 
personal comfort and well-being, whether caused by 
transformation, conversion, or in combination with other air 
pollutants,'' not necessarily purely inhalation routes of 
exposure, as Mr. Glaser suggests.
    We did look at the ATA decision. One thing that I will say, 
that Dean Huffman and I are very much in agreement on, is that 
the ATA decision is an aberration, as he said. As you well 
know, Mr. Chairman, we have sought rehearing before the D.C. 
Circuit of that decision and requested a rehearing en banc 
before the full court. But despite our fundamental disagreement 
with it, that is the prevailing precedent in the Circuit at 
this time and we obviously want to conform our activities to 
it.
    We have looked at that decision. Were it to stand, our 
sense is that there is enough clear guidance, limiting 
principles in this statutory construct that would suggest that 
in fact there is not an unconstitutional delegation of 
authority were EPA to go forward with some kind of regulatory 
approach to limiting carbon dioxide. But, again, I want to get 
back to my basic point, which is that EPA has not made that 
kind of decision and currently has no plans to do so.
    Mr. McIntosh. Right. I would have to say for the record I 
would disagree with your reading of that case. To me it would 
read more like an unconstitutional usurpation of authority by 
EPA that the courts were trying to prevent when they struck 
down those rules.
    Let me turn now to Mr. Calvert for questions he might have.
    Mr. Kucinich. Are we going back and forth, Mr. Chairman?
    Mr. McIntosh. We were going to have the two chairmen speak 
first, then go back and forth. Does that work for you, Dennis? 
I will try to get you in before we go back to the votes.
    Mr. Kucinich. I just wanted to see what the ground rules 
are. I am ready to play, I just wanted to know what the rules 
are.
    Mr. McIntosh. Great. We were going to do each committee 
back and forth.
    Mr. Kucinich. OK. And we have 10 minutes? No problem.
    Mr. Calvert. I thank the chairman. There is a lot of 
discussion about the intent of Congress at the time of the 
implementation of the Clean Air Act. I would ask the chairman, 
there are not too many Members still here, but Congressman 
Dingell is here and I would ask that he would submit his 
testimony or letter to the record. I am sure the gentleman from 
Michigan would submit testimony on the intention of Congress at 
that time. I think it would be interesting to have in the 
record, especially from the minority position. So if that is 
not objectionable, Mr. Chairman.
    Mr. McIntosh. There being no objection, we will hold the 
record open for shall we say 10 days.
    Mr. Calvert. I would ask that that be done. Ten days is 
fine with me.
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    Mr. Calvert [presiding]. I would like to ask Mr. Guzy a 
question. On June 11, 1998, EPA published a proposed rulemaking 
regarding the protection of stratospheric ozone, refrigerant 
recycling, substitute refrigerants in the Federal Register. It 
is my understanding that this proposed rule may ban certain 
non-ozone-depleting refrigerants if they have high global 
warming potentials. The text of the proposed rulemaking states: 
``EPA recognizes that the release of refrigerants with high 
global warming potentials could cause a threat to the 
environment.''
    This implies to me that under the rulemaking EPA has made a 
determination that global warming is a threat to the 
environment. Since CO2 is considered a major 
contributor to global warming, then is it not just a small step 
for EPA to declare CO2 a threat to the environment 
and to proceed with regulations? What is your comment on that, 
Mr. Guzy?
    Mr. Guzy. The EPA, under a series of long-standing 
commitments that actually preceded this administration, has 
expressed concern about the potential for greenhouse gases to 
cause a global climate change. In fact, the preceding 
administration negotiated and signed on the Nation's behalf the 
Rio Declaration. That gives rise to a series of domestic 
obligations----
    Mr. Calvert. So the administration is determined to start 
regulating various gases based upon potential agreements; is 
that your testimony, Mr. Guzy?
    Mr. Guzy. No. In fact, that agreement, the Rio Agreement 
was ratified by the Senate and is binding upon the United 
States. Now it does not call for the same kinds of targets and 
timetables that the Kyoto Protocol does. Nonetheless, the Clean 
Air Act has a number of authorities that compel EPA to look at 
environmental effects and we would regard climate change 
effects as among those.
    Mr. Calvert. For all the witnesses, on any major 
controversial issue--and I think everyone on this panel would 
agree that this is controversial--of long-standing debate, with 
enormous economic implications like global warming, is it even 
conceivable that Congress would authorize EPA to launch a vast 
new regulatory program without expressly saying so? As far as I 
know, this Congress has not said so. Is Congress in the habit 
of delegating far-reaching powers to agencies just by mere 
silence? Anyone have any comment about that?
    Mr. Huffman.
    Mr. Huffman. Yes. It is to me a peculiar notion of American 
Government that problems that arise that are new problems are 
to be solved by searching around in existing legislation for 
authority. It seems to me that our constitutional system is 
fairly clearly separated into three parts, not with clear 
dividing walls between them, but the policymaking function is 
clearly the legislature's. It seems to me in recent years, 
particularly in the current administration, there has been a 
tendency to have an agenda which by-passes Congress and is 
sought to be implemented through existing legislation.
    Mr. Calvert. Are you saying, Mr. Huffman, that I did run 
for election for a purpose?
    Mr. Huffman. I would hope so. And I would say that the most 
condemning thing that I have heard said today was my friend, 
Professor Miller's comment, that this legislation fits almost 
anything. Any piece of legislation about which that can be 
said, where that argument can be used to justify regulation, is 
a piece of legislation which delegates more authority than 
Congress can delegate. I think even the U.S. Supreme Court, 
which has been reticent to overturn legislation on the non-
delegation theory, would find that argument problematic in 
support of regulating CO2.
    Mr. Miller. Of course, I think I completed my sentence by 
saying that the first test, whether it is an air pollutant, 
fits almost anything that is emitted into the air, but that the 
second test, which is necessary before EPA does anything, is 
that it finds that it is an endangerment to health and welfare 
and that something can be done about it.
    But the tradition of searching around in existing statutes 
to meet a present problem is one of long-standing tradition. I 
remember in the Nixon administration when the Environmental 
Protection Agency, or its predecessor actually, and the Justice 
Department resurrected an 1898 statute having to do with 
dredging harbors and rivers to begin a water pollution 
permitting program. That was eventually struck down, not 
because it was not authorized, but it was struck down because 
it did not comply with NEPA.
    Mr. Guzy. Mr. Chairman, if I may, we believe that Congress 
made a fundamental policy choice when it passed the Clean Air 
Act to protect the public health from endangerment from air 
pollutants. But it did so in a very far-sighted kind of way. It 
did not just say here is the problem, these are solutions. It 
said keep looking at it because the science will evolve, the 
problems will evolve, you cannot be static in time. In fact, it 
included provisions that require us to look back every 5 years 
and assess using the best available science through an 
independent peer review process whether, in fact, we have got 
it right.
    Mr. Calvert. Mr. Guzy, I am very interested in clean air. I 
represent Riverside, CA, and anyone who represents an area in 
southern California is extremely interested in clean air. What 
I am concerned about is whether any statutory authority has 
been given to regulate CO2. I have heard nothing 
from this Congress that gives EPA statutory right to regulate 
CO2. I go back to the start of my questioning, I am 
interested in Mr. Dingell's testimony he will submit to this 
committee for the record as to what the intentions of the 
Congress was back thirty years ago under the Clean Air Act.
    Mr. Glaser, do you have any comment?
    Mr. Glaser. Yes. The problem for the notion that there is 
some mop up authority in the Clean Air Act to deal with new 
problems as they come along, that is one thing. But we are now 
almost 30 years into Clean Air Act regulation. Congress has 
taken a look at this act a number of times and has gone back 
and included many, many, many more detailed provisions in the 
act than there used to be.
    The notion about whether a substance should be mentioned in 
the act in order to be regulated gets us into the claim of 
authority that EPA could potentially regulate carbon dioxide as 
a hazardous air pollutant under section 112. Well, I think in 
1990 Congress added 190--190--substances explicitly referenced 
as hazardous air pollutants and carbon dioxide is not on the 
list. Now, does that mean that there might be a 191st substance 
out there that EPA is authorized to regulate because this 
substance, for instance, was not manufactured in 1990 and 
somebody has just discovered something about it. That may be 
true. But the notion that Congress in 1990 just sort of missed 
carbon dioxide is not credible.
    Mr. Calvert. My time has expired, Mr. Glaser. But just as a 
final point, and well-taken, it seems to me that people were 
talking about at what point does CO2 become 
dangerous or gets over the natural level. I guess the only 
comment I would have is if you cannot regulate it, it is good 
CO2, and if you can regulate it, it is bad 
CO2. It is just determined on which type of 
CO2 we regulate.
    With that, Mr. Chairman, my time has expired.
    Mr. McIntosh. Thank you, Mr. Calvert.
    Let me recognize now our colleague, Mr. Kucinich. Why don't 
you also feel free to take Mr. Costello's time.
    Mr. Kucinich. I do not think I will need that much time. I 
want to thank the Chair very much for calling this hearing, and 
also recognize Mr. Calvert, who I had the pleasure of actually 
traveling with to the Conference of Parties in Buenos Aires, 
Argentina to discuss some of these same issues. So, I am glad 
to have the opportunity to share a panel with you again. I look 
forward to some of these important issues that are discussed.
    From the outset, what I would like to say, and I think many 
members of this committee are fully aware, including, and 
perhaps especially Mr. Barr, is that I am a firm believer in 
Congress exerting its authority. As some of you will recall, I 
am a co-plaintiff with Mr. Campbell of California in 
challenging the administration's usurping of congressional 
authority on Article 1, Section 8 of the Constitution, the 
ability to declare war. So I am not ready to cede congressional 
authority on anything. I just wanted to share that with you. 
And that is why I think that Mr. McIntosh's point is well-taken 
in asking these questions. But I have some questions that I 
would like to ask that kind of approach this from a slightly 
different perspective, as you may expect.
    First of all, welcome to all of the panelists. Professor 
Huffman, I have actually had the opportunity to visit your 
campus a few times there in Portland, and it is beautiful. It 
is a short walk from Tom McCall Park, who was a great 
environmentalist who I admire greatly, who actually influenced 
my career in some ways. What he did to help reclaim that Oregon 
coastline I thought was one of the most important contributions 
that any public official has made in this country. So I have a 
real affection for Portland and for the area, and it is nice to 
see you here.
    I would like to start with asking Mr. Guzy, I have read Dr. 
Huffman's written testimony in which he refers to EPA's 
proposed regulation of carbon dioxide. I came a little bit late 
so I may have missed something. Has the EPA proposed 
regulations of carbon dioxide?
    Mr. Guzy. No. Not in any way.
    Mr. Kucinich. OK. So, if there is any statement relating to 
EPA regulation of carbon dioxide, I am reading from Dr. 
Huffman's testimony, I think it is page 4, ``EPA's proposed 
regulation of carbon dioxide,'' you are saying that EPA has not 
proposed such regulation?
    Mr. Guzy. As he uses it there, we have not. We have used 
our authority to----
    Mr. Kucinich. I understand that.
    Mr. Guzy. Referenced under some other provisions, where 
that is appropriate, to address general environmental effects, 
particularly under title VI. But to address carbon dioxide as 
carbon dioxide, EPA has not proposed any regulation.
    Mr. Kucinich. Also, I am again looking at Dr. Huffman's 
testimony where he cites the American Trucking case. Are you 
familiar with that case?
    Mr. Guzy. Yes, I am.
    Mr. Kucinich. This may just be a question of linguistic 
construction, but maybe you can help me, Mr. Guzy. I am reading 
this on the section about government of limited and divided 
powers. At issue in American Trucking was whether or not the 
EPA had acted within its authority in setting new standards for 
particulate and ozone ambient air quality. The court 
acknowledge that, and then in parentheses, ``unlike carbon 
dioxide,'' EPA has expressed statutory authority to regulate 
ozone and particulates, and it goes on. I am not that familiar 
with American Trucking. Did they mention carbon dioxide in any 
way?
    Mr. Guzy. I currently do not remember the court mentioning 
carbon dioxide.
    Mr. Huffman. That is my parenthetical, not the court's.
    Mr. Kucinich. Oh. So maybe brackets would have been better, 
professor.
    Mr. Huffman. Thank you for the correction.
    Mr. Kucinich. My background is in communications. I am not 
a law professor. I am just a humble Member of the Congress.
    Mr. Huffman. I apologize for that. The editors of my law 
review would have corrected me as well. So, thank you.
    Mr. Kucinich. I do not work out of those lofty environs. I 
am just trying to figure out what the case said. Thanks.
    I would like to know, Mr. Guzy, would you comment on the 
paper entitled, ``CO2: A Pollutant'' which was 
prepared for the National Mining Association by Mr. Glaser and 
others.
    Mr. Guzy. Well, it does in my estimation draw a number of 
sweeping conclusions from some fairly thin facts. At times, it, 
in my view, does not fairly present the statutory text that is 
presented. For example, in its treatment of 103(g), which is in 
our memorandum an absolutely critical provision to make clear 
that Congress was well aware that carbon dioxide could be 
regarded as an air pollutant, instead of recognizing that 
Congress regarded it as an air pollutant, it says it is an 
``item.'' It says carbon dioxide is an item to be addressed in 
a technology program, a technology and research development 
program. That seems to be a fundamental fatal oversight in the 
analysis of the statutory text that is in there.
    Similarly, a number of the arguments on legislative history 
seem to be fairly sweeping in their conclusions. For example, 
Congress well knew how to require of EPA that there be a study 
before it engaged in regulation; mercury, the utility study, 
the Great Waters Study, all of which require that we study, and 
submit reports to Congress before engaging in any regulatory 
steps. That is absolutely absent with respect to carbon 
dioxide. One would expect giving the proper deference to 
Congress' intent that----
    Mr. Kucinich. Is it possible that as science evolves and 
technology evolves, when you look at what might have been the 
intent at the time, that to put it into the context of advanced 
science may be somewhat difficult, may present a challenge?
    Mr. Guzy. If I understand your question, one of the things 
that is most striking about the Clean Air Act is how 
foresighted Congress was in 1970 when it enacted it, that it 
recognized that the problems may change, that technology may 
change, that science may change. Not only did it list 188 HAPs, 
it also provided authority to the Administrator to remove some 
of those if appropriate, or to add others, if needed. Not only 
did it say you adopt national ambient air quality standards for 
fundamental air quality issues, but it gave the Administrator 
authority to add others if needed, if they endanger public 
health or welfare.
    So, that recognition that action should be premised on the 
best available science and that that science will change is 
really embodied in the concept of the Clean Air Act. That is 
among the fundamental choices that Congress made back then and 
has ratified every time since when it has passed and reaffirmed 
the Clean Air Act.
    Mr. Kucinich. OK. I would just like to say again that, as a 
Member of the Congress of the United States, I am not here to 
represent administrative opinion, I have constituents who are 
very concerned about some of these issues relating to air 
quality and to global climate change and things like that. As a 
Member of Congress, just as my colleagues here want to insist 
that Congress plays a role in these things, I want Congress to 
play a role, too.
    Thank you very much. Thanks to the panelists.
    Mr. McIntosh. Thank you, Mr. Kucinich.
    Before turning the questioning over to Mr. Ehlers, let me 
just make sure I understand what you were just saying, Mr. 
Guzy. That a flaw in Mr. Glaser's analysis is that he talks 
about the fact that there is no study, and the fact that there 
is no study really means that Congress thought it might 
regulate CO2 as a pollutant? I do not mean to be at 
all facetious, but I was not following your argument there.
    Mr. Guzy. My argument is that when Congress wanted to 
require additional scientific assessment before authorizing 
regulatory action under pre-existing statutory requirements it 
knew perfectly well how to require that. It did it for mercury, 
it did it for deposition of air pollutants in the Great Waters, 
and it did not do it for CO2. Now, we would not say 
that in itself provides an indication of statutory authority to 
move ahead. But combined with the other provisions that we have 
cited, we believe that it is inappropriate to suggest that 
there is some limitation on potential EPA action that can be 
derived from any of the succeeding activities that Congress 
engaged in on CO2.
    Mr. McIntosh. But would you not acknowledge that it is at 
least an equally plausible interpretation that Congress, by not 
requiring that study, did not think of regulating 
CO2 as a pollutant?
    Mr. Guzy. I would find that hard to believe in view of the 
very clear language in section 103(g) where Congress, in fact, 
refers to carbon dioxide as an air pollutant. That seems very 
unambiguous.
    Mr. Glaser. Mr. Chairman, if I could just jump in. I 
actually would reach exactly the opposite conclusion than Mr. 
Guzy is reaching on the issue of study. As he said, the act did 
include provisions in 1990 amendments for study and then a 
decision by EPA whether to regulate. In contrast, there were 
provisions in the Clean Air Act I believe for study of methane 
but there was no corresponding provision of the act that said, 
well, if they determine that methane is a problem, then 
regulate. That is not in there. It is not in there anywhere.
    I would say that the argument about what the act says about 
studies supports the notion that Congress very, very, very 
carefully drew the line about what it wanted to do with 
CO2, and it did not include regulation.
    Mr. McIntosh. OK. I apologize to Mr. Ehlers for using some 
of his time. I just wanted to make sure I understood what the 
points were there.
    Let me recognize Mr. Ehlers for questioning.
    Mr. Ehlers. Thank you, Mr. Chairman. Both of us have to go 
vote in committee immediately. I had a list of questions but I 
will cut to the chase here and just make a comment.
    Mr. Guzy and Mr. Miller, you have both made good cases for 
the proposition that the EPA has the authority to regulate. 
These are good cases but they are not convincing. I think the 
crux of the matter, just speaking as a Member of Congress, is a 
point that Mr. Huffman made. I might also say that as a 
scientist, I am very concerned about the increasing amount of 
CO2 and what it is likely to do in climate change, 
not so much global warming but climate change of various sorts. 
But Mr. Huffman made some basic points and I think they get to 
the crux of the matter, as I see it as a Member of Congress.
    The point is, simply, I do not think the Congress in 1970 
really envisioned CO2 as ever being a problem. I 
think the Congress in 1990 began to discern that it was a 
problem, although I recognize that legislation started much 
earlier than 1990. But if you would say what is the best action 
that could be taken today to control the increase of 
CO2, I would have to give an answer as a Member of 
Congress that the Congress should look at it, because I am not 
at all convinced that EPA's activities, if they would operate 
within their charter, is the most efficient way of dealing with 
the doubling of CO2. For example, increasing CAFE 
standards, which I believe is in the province of the Department 
of Transportation, and we, of course, legislate that, might be 
a much more efficient way. To simply say that we have to double 
the CAFE standards would greatly reduce CO2 
emissions. Or, perhaps we should double the gas tax. And as a 
Republican, I would have to add I would compensate by lowering 
the income tax or something else so it is revenue neutral. But, 
nevertheless, that would be an effective way of reducing 
CO2 emissions.
    In terms of power production, you could get rid of immense 
amounts of CO2 from plants by engaging in a mammoth 
expansion of our nuclear power program. That would also not be 
environmentally popular but it would certainly take care of the 
CO2 emission problem. And there are a host of other 
alternatives, all of which would be administered by agencies 
other than the EPA.
    And so my argument from a very pragmatic point is, given 
the whole argument what Congress intended, what the law says, 
what the Constitution says, what the intent is of the 
Constitution and the Congress, I would have to simply go with 
the fact that I think Congress should revisit the issue and 
say, OK, we are increasing CO2 at an alarming rate. 
What is the problem and what is the best set of solutions that 
we can come up with.
    Having made that statement, I will have to leave and go 
vote in another committee. So, sorry. You can respond for the 
record to the chairman, but I do have to leave and I apologize.
    Mr. Calvert. I thank the gentleman's attendance. You are a 
brave man. Anybody that wants to raise gas taxes and bring on 
nuclear power, you are a brave guy. [Laughter.]
    Mr. Ehlers. I did not say that.
    Mr. Calvert. Any comment from the panel on Mr. Ehlers' 
comments?
    Yes, Mr. Guzy?
    Mr. Guzy. If I may, I would just point out that the second 
part, and a very critical part, of the EPA legal memorandum 
points out a very similar point, that existing authorities do 
not easily lend themselves to cost-effective mechanisms to 
impose a cap and trade program. The administration clearly 
favors those kinds of emissions trading programs as the most 
cost-effective means for achieving the needed greenhouse gas 
reductions. And further, the administration has pledged to work 
with Congress on finding appropriate legislative proposals to 
be able to accomplish those means in a cost-effective way. So 
we would very much agree--not with all of the particular 
proposals that he may be contemplating, but the general----
    Mr. Calvert. You are not going to resubmit the BTU tax?
    Mr. Guzy. Right. But certainly with the general point that 
the administration and Congress would do well to work together 
to address these issues.
    Mr. Calvert. I thank the gentleman.
    The gentleman from Georgia, Mr. Barr.
    Mr. Barr. Thank you, Mr. Chairman. Mr. Chairman, I am 
always amazed at the imagination possessed by Clinton 
administration lawyers to find statutory authority wherever 
they want to find it but to ignore wherever there is a 
prohibition. Just recently one of your colleagues, Mr. Guzy, 
from HUD, in answer to a question posed at a hearing trying to 
establish some basis for the Clinton administration Department 
of Housing and Urban Development involving itself in suits 
against manufacturers of firearms, pointed simply to prefatory 
general language to a statute regarding HUD housing authorities 
talking about providing an appropriate and safe environment as 
providing expressed statutory authority for the agency to 
involve itself in lawsuits against the manufacturer of a lawful 
product.
    A couple of years ago we had an attorney from another 
department, it may have been State or the FBI, in response to a 
question that I posed at another hearing asking what was the 
authority for the FBI to send its agents overseas to 
investigate a case not involving a U.S. person or U.S. 
interest, but to investigate a case involving purely a foreign 
matter and foreign nationals having nothing to do with the 
United States, and they pointed to a statute that provided the 
authority to send agents overseas to investigate cases 
involving U.S. persons and U.S. interests. And we just got 
involved in a circular argument.
    And here today, I am not quite sure what your position is, 
but I am sure it is one that careful thought has been given to 
to try to get around the long-standing rules of statutory 
construction. Twenty years ago, when I did legislative work for 
the CIA, it was well-known at that time, and maybe you can cite 
me some Supreme Court authority that overturns the legislative 
history notions at that time, it was well-established that if 
Congress intends to grant a Federal agency power it must do so 
expressly.
    As a matter of fact, also a statutory rule of long standing 
cites that if a number of specific authorities are granted, 
there is a clear implication, of which courts will take notice, 
that anything else is not included by clear implication. And, 
yet, I think you are now saying that simply because Congress 
lists a number of areas in which they want EPA to become 
involved, simply because they did not include something that 
you now want to include, the implication should be otherwise. I 
do think that is contrary to general notions of statutory 
construction.
    In a number of instances where EPA has tried to claim 
authority to regulate carbon dioxide, whether it is section 111 
of the Clean Air Act, or 112, I think you are, to put it 
mildly, on very, very shaky ground. I think you are clearly on 
wrong ground. It may be that as a policy matter you just want 
to involve EPA in CO2. But I do not think that you 
can do so legitimately based on normal rules of statutory 
construction because Congress nowhere has granted that 
expressed authority to EPA. And as a matter of fact, in those 
instances such as we are talking about here today where 
Congress has given EPA authority to address as pollutants 
certain materials in the ambient air, CO2 is not 
listed.
    So I really am intrigued by your arguments. I would be 
interested if maybe you could address it once again, because I 
think your colleagues at the table here have a different 
understanding of statutory construction as well.
    Mr. Guzy. With all due respect, Congressman Barr, our 
argument is not that we find this authority simply through 
implication. Rather, our position is that the source of 
authority is rooted in the statutory text itself, that it is 
not premised purely upon a desired policy outcome. And I want 
to be very clear about that.
    I ran through it before in my testimony, but I would be 
happy to----
    Mr. Barr. It is not the policy of the Clinton 
administration through EPA to regulate CO2?
    Mr. Guzy. Let me also be clear, I made this clear before, 
this is very much a theoretical argument. EPA does not 
currently have a proposed regulation. We do not have plans to 
marshall the authorities that Congress provides in the Clean 
Air Act to address CO2.
    Mr. Barr. OK. Let me then pose you the following two very 
specific questions, which I think are very consistent if you 
mean what you just said.
    Your testimony seems to reiterate the administration's 
commitment not to implement the Kyoto Protocol before it is 
ratified.
    Mr. Guzy. That is absolutely correct.
    Mr. Barr. But you also seem to be claiming that EPA does 
have the authority to regulate CO2 emissions.
    Mr. Guzy. We believe that the Clean Air Act does provide 
that authority, yes.
    Mr. Barr. Then notwithstanding that, and based on what you 
said previously, can you assure the subcommittee that even 
though EPA believes it already has the authority to regulate 
CO2, EPA will not do so until and unless the 
Protocol is ratified? Will you give us that assurance?
    Mr. Guzy. I will assure the subcommittee of the following. 
We do not intend to implement the Kyoto Protocol before it is 
ratified and unless and until it is ratified by the Senate.
    Mr. Barr. You would certainly not do something that you do 
not intend to do.
    Mr. Guzy. And we have no plans to use our existing 
authority to regulate carbon dioxide. But to go further than 
that and try and anticipate all of the ways in which in the 
future it may be appropriate or not appropriate to use the 
authority that Congress has provided in the Clean Air Act to 
EPA would not, in our view, be responsible.
    Mr. Barr. Are you saying then that if the EPA determines 
that CO2 emissions endanger public health, welfare, 
or the environment, that the EPA may regulate CO2 
even if the Senate does not ratify the Kyoto Protocol? Are you 
trying to have it both ways? I admire you if you are trying to 
do that. I know that you all do that. Is that what you are 
trying to do here?
    Mr. Guzy. You have hit on an important point. I think the 
critical point is that, although in our opinion there is broad 
authority to regulate CO2, the act did cite carbon 
dioxide to be within the class of substances that could be 
subject to regulation under the Clean Air Act.
    Mr. Barr. Not under section 112 though.
    Mr. Guzy. Well, perhaps.
    Mr. Barr. Section 112 lists several dozen items, but not 
CO2.
    Mr. Guzy. I am talking about the general definitional terms 
of the act for air pollutant. Nonetheless, there would be a 
series----
    Mr. Barr. Which, according to that broad interpretation, 
the definition could mean anything absolutely that is in the 
air. Is that how broadly you are interpreting it?
    Mr. Guzy. But if I could go on. But then there are a series 
of provisions that then follow. And were the administration to 
decide to pursue a regulatory approach, we would have to make 
through the formal rulemaking process a number of findings, the 
most critical of which would be that there is endangerment of 
public health, welfare, or the environment. And we have not 
commenced that process. We do not have plans to commence that 
process.
    Mr. Barr. Well, with good reason. That would make every one 
of us a polluter.
    Mr. Guzy. It would be for, I presume, a specific chemical 
or a specific purpose.
    Mr. Barr. CO2.
    Mr. Guzy. And really recognizing, for example, in the 
ambient air quality standard provisions of the act, that there 
are specific sources that are specified that are required to be 
found the source of those emissions as well, diverse mobile or 
stationary sources, and I do not believe that the definition 
includes an individual breathing there.
    Mr. Miller. If I could interject here. Of course, under the 
counterpart statute, the Clean Water Act, we are all polluters. 
Half of the pollution regulated under that statute is liquid 
and solid waste from humans. So you do not prohibit that. We 
effectuate different kinds of treatments for it.
    Mr. Barr. Do not even suggest that to the administration, 
please. [Laughter.]
    Thank you. Thank you, Mr. Chairman.
    Mr. Calvert. I thank the gentleman.
    Just one quick question for Mr. Guzy before we go to the 
next panel. When is the administration going to submit the 
treaty for ratification to the Senate? We would like to see it 
go over there. Are you going to submit it next week, next 
month?
    Mr. Guzy. As the administration says, and other people can 
probably speak to it far better than I can, we are working hard 
to address the issues that the Senate raised in the Byrd-Hagel 
resolution.
    Mr. Calvert. Do you have a timetable for when you are going 
to submit the treaty for ratification?
    Mr. Guzy. It really does depend on the work that is being 
done in the international negotiations.
    Mr. Calvert. So you do not have a timetable to submit the 
treaty for ratification. Why is that? Why won't you submit the 
treaty for ratification to the Senate?
    Mr. Guzy. Again, the administration's commitment is to 
ensure that in fact there are the appropriate flexible 
mechanisms in place that----
    Mr. Calvert. It has nothing to do with the fact that you 
may not even have 10 votes over in the Senate for the 
ratification of the treaty?
    Mr. Guzy. Well, I can tell you what the administration's 
commitment is, which is to work with developing countries and 
to ensure that there are flexible mechanisms in place.
    Mr. Calvert. We certainly thank this panel for your 
testimony and for answering our questions. It was of great 
interest. This panel is adjourned.
    We will now move to panel two. We have Dr. Patrick J. 
Michaels, research professor of Environmental Sciences, 
University of Virginia; Dr. Christopher B. Field, Carnegie 
Institution of Washington, Department of Plant Biology, 
Stanford University, California; and Dr. Keith E. Idso, vice 
president, Center for the Study of Carbon Dioxide and Global 
Change, Tempe, AZ.
    I want to thank the witnesses. This committee swears the 
witnesses in. So if you will please rise and raise your right 
hands. Do you swear to tell the truth, the whole truth, nothing 
but the truth, so help you God?
    [Witnesses sworn.]
    Mr. Calvert. Let the record show that the witnesses 
answered in the affirmative.
    You may take your seats. We are under the 5-minute rule in 
this committee, so any testimony that you may have will be 
submitted for the record. We ask that you try to keep your oral 
testimony to 5 minutes or less so we can have time for 
questions and answers.
    With that, Mr. Michaels, you may begin.

 STATEMENTS OF PATRICK J. MICHAELS, PROFESSOR OF ENVIRONMENTAL 
    SCIENCES, UNIVERSITY OF VIRGINIA, AND SENIOR FELLOW IN 
 ENVIRONMENTAL STUDIES AT CATO INSTITUTE; KEITH E. IDSO, VICE 
 PRESIDENT, CENTER FOR THE STUDY OF CARBON DIOXIDE AND GLOBAL 
  CHANGE; AND CHRISTOPHER B. FIELD, STAFF SCIENTIST, CARNEGIE 
    INSTITUTION OF WASHINGTON, AND PROFESSOR OF BIOLOGICAL 
                 SCIENCES, STANFORD UNIVERSITY

    Mr. Michaels. Thank you, Mr. Chairman. About 100 years ago 
mankind began in earnest to emit carbon dioxide into the 
atmosphere, and scientists recognized even 100 years ago there 
could be consequences. Svante Arrhenius, a Swedish scientist, 
in 1896 published a paper in the Journal of Philosophical 
Transactions, in which he calculated that doubling atmospheric 
carbon dioxide would raise the mean temperature of the planet 
about 5 degrees celsius. And if you read his paper carefully, 
for the current concentrations that we have emitted into the 
atmosphere, he is stating that we should have warmed the 
temperature about 3.25 degrees celsius.
    Through the course of the 20th century, people developed 
more finely scaled methods to estimate climate change. By 1990, 
the United Nations, in convening the Intergovernmental Panel on 
Climate Change, used a suite of climate models that suggested 
that the planet should have warmed about 1.8 degrees celsius as 
a result of what human beings have done to the atmosphere.
    The actual warming that we have seen is 0.6 degrees 
celsius, or about one-third of the amount that was estimated by 
the mean suite of climate models around 1990.
    This chart shows temperatures over the course of the last 
100 years, and estimated temperatures for the last 400 years, 
along with solar activity that has been calculated by two NASA 
scientists, Lean and Rind. The solar activity is the closed dot 
here. You can see solar activity is as high as it has been in 
the last 400 years. The conclusion, regardless of all the news 
stories that we hear, Congressman, is that if this were not the 
warmest decade in the last 400 years, there would be something 
wrong with the basic theory of climate, which is that the sun 
warms the Earth.
    Now, when we examine the behavior of the temperature in the 
last 50 years or so, we see something very interesting emerging 
that leads one to think that human beings might be changing the 
climate, because the character of the warming of the last 50 
years is different than the character of the warming of the 
previous 50 years. By and large, it is a warming of the coldest 
air masses in the winter. Vital statistics in the United States 
show these to be the deadliest air masses that we know of.
    This is the temperature change since World War II in the 
winter in both the northern and southern halves of the planet; 
the seasons are flipped at the equator, it is the cold 6 months 
of the year. You can see the very, very large warming here in 
the dead of Siberia in the middle of winter, and in 
northwestern North America. These are the source regions for 
these very fatal and cold air masses. Elsewhere there is very, 
very little warming on this chart. In fact, greenhouse theory 
predicts that a cold dry atmosphere will warm a lot more than a 
warm wet atmosphere.
    If we take a look at the ratio of winter to summer warming, 
we see something emerging. More people die in the winter, by 
the way, from the weather than die in the summer. Since World 
War II, we see that over two-thirds of the warming that has 
occurred has occurred in the winter half year rather than the 
summer half year in the northern hemisphere.
    Now getting back to this notion of the warming being mainly 
concentrated in these very, very cold air masses in Siberia and 
northwestern North America, the next chart I really would urge 
you to pay attention to. It shows the average warming trend 
within these extremely cold air masses. These average about 
minus 40 degrees celsius; they have warmed to about minus 38 
degrees celsius. I do not hear the citizens of Russia clamoring 
for a return to the climate of the Stalin era. These over here 
are about minus 30 degrees celsius, maybe have warmed to about 
minus 29 degrees celsius. Now the average warming in these very 
cold air masses is shown in the bar chart on the right. It is 
0.214 degrees C per decade, or about 2.1 degrees per 100 years. 
In other words, that is how much it is warming here in these 
deadly air masses.
    In the rest of the northern hemisphere, the average warming 
in each one of these little boxes that you see, and this is the 
United Nations Climate Record, is 0.021 degrees celsius per 
decade. Two-hundredths of a degree celsius per decade in the 
northern hemisphere cold half year outside of Siberia and 
northwestern North America.
    It works out that three-quarters of the warming of the 
winter half year is taking place in those very, very cold air 
masses, and two-thirds of the overall warming of the last 50 
years is taking place in the winter. Do the math. Most of the 
warming is confined to air masses that are inherently deadly 
and inherently cold.
    Now, when I began, and I will be done, mercifully, shortly, 
when I began I noted that the warming was not as much as was 
predicted by the models that served as the basis for the United 
Nations in 1990, the report. The ostensible reason for that is 
something called sulfate aerosol which does not exist in the 
southern half of the planet in any significant form. The idea 
is that sulfate aerosols are cooling the warming that should be 
occurring. Only look at the satellite temperature history from 
the southern hemisphere of the planet. It is very obvious that 
there is no warming in this record whatsoever. It is also very 
obvious that there was a big El Nino in 1998 and that is over; 
we are not having monthly press conferences now about the 
temperature of the planet being warmer than heck.
    Well, the sulfate argument probably does not work. And it 
is doubtless that those satellite temperatures are correct. 
This record here shows the satellite temperature record, in 
this shaded area here that is flat, the open circles are 
weather balloon records from 5,000 to 30,000 feet, and the 
closed circles are ground-base temperatures. The ground-base 
records are going up. The atmosphere is not warming above 5,000 
feet. Every climate model that we have, and this is typical of 
them, I will go back, predicts a warming in the range of 0.23 
degrees celsius per decade in the entire atmosphere, all the 
way up to the stratosphere. From the surface all the way to the 
tropopause, an average of 45,000 feet, to be warming that much. 
These are the warmings that are occurring between 5,000 and 
30,000 feet, depending upon what record you use.
    This is a typical computer model--and I am just about to 
end--this one from the Lawrence Livermore National Laboratory. 
This is north, this is south. Everywhere where it is orange or 
yellow it is predicted to have warmed in the last 25 years and 
then it cools in the stratosphere. There is no warming in the 
last 25 years in all the records that we can find in that zone.
    Now, I am going to turn the tables here and close with what 
I want to call reverse argument. Let's say that all that money 
that we have spent on climate change has bought us something; I 
do not know what, but let us say it has bought us the fact that 
we know the way the climate changes once it starts to change. 
This is a series of outputs from various computer models. I 
would like to draw to your attention that once the planet 
starts warming, it warms at the same rate that it began to 
warm. It warms at a constant rate. It does not warm at an 
increasing exponential rate. There are various assumptions in 
these models; some of them have sulfates in them, some of them 
do not, some of them have the real way that CO2 is 
changing in the atmosphere, which is the low one down here, 
others do not, and we have nature since 1968 warming up the 
surface temperatures of our planet.
    I believe nature has already given us the answer on global 
warming. There is the trend of the last third of this century 
extended out under the assumptions that all the climate models 
make, that the warming is a straight line. It works out to 1.3 
degrees celsius over the course of the next 100 years. Because 
of the winter-summer differential, it is about 1.5 degrees in 
the winter, 1.1 degrees in the summer. Hard to call that a 
pollutant.
    Thank you very much.
    [The prepared statement of Mr. Michaels follows:]
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    Mr. Calvert. I thank the gentleman.
    Mr. Field.
    Mr. Field. Chairman Calvert, members of the committee, I 
appreciate the opportunity to address this hearing. My remarks 
today will focus not on the legal issues, but on the plant 
physiology. I will emphasize three points. First, atmospheric 
CO2 is essential for life on Earth; second, the 
concentration of CO2 in the atmosphere has increased 
dramatically over the last century, as a consequence of human 
actions; and third, increasing atmospheric CO2 has a 
mixture of positive and negative effects on plant growth, food 
security, and natural ecosystems. Adding the prospect of human-
caused climate change tends to make the overall impacts more 
negative. Let me explain each of these points.
    First, atmospheric CO2 is essential for life on 
Earth. I think we generally agree on that. Plants growth 
through photosynthesis, a process that uses the energy from 
sunlight to combine carbon dioxide from the air with water to 
make carbohydrates plus oxygen. The carbohydrates formed 
through photosynthesis feed not only the plants, but almost all 
other organisms on Earth, including those that eat plants and 
those that eat the animals that eat the plants. Of course, 
humans are included in the group that depends on the products 
of photosynthesis.
    Second, the concentration of CO2 in the 
atmosphere has increased dramatically over the last century, as 
a consequence of human actions. As Dr. Michaels has already 
explained, at the beginning of the Industrial Revolution, 
before the extensive use of fossil fuel by humans, the 
concentration of CO2 in the atmosphere was about 280 
parts per million, or about 0.28 percent, and it has increased 
by about 30 percent, so that now a little less than 1 cubic 
inch of each cubic foot of the atmosphere is composed of 
CO2. We know, based on measurements in ice cores, 
that the current concentration of CO2 in the 
atmosphere is higher than it has been at any time in the last 
400,000 years.
    The third point I want to make is that increasing 
atmospheric CO2 has a mixture of positive and 
negative effects on plant growth, food security, and natural 
ecosystems. I will comment first on food production.
    Most of the world's plants use a mechanism for 
photosynthesis that is through two sensitives. Photosynthesis, 
or CO2 fixation, increases when the CO2 
concentration increases. For many crops, under current 
conditions this means that crop growth rate also increases. And 
in large number of experiments, crop growth under doubled 
atmospheric CO2 increases by 10 to 50 percent.
    The CO2 sensitivity does not apply uniformly to 
all crops. Some important crops, most notably corn and sugar 
cane, use a different photosynthesis pathway called C-4. For 
these crops photosynthesis does not increase with increasing 
CO2, and growth increases only a little bit. In the 
absence of other factors, the direct effect of increased 
CO2 on crop growth would very probably lead to 
higher global food production. Now whether or not this is a 
benefit from the perspective of U.S. agriculture will depend on 
world market conditions.
    It is also very short-sighted to think only of the effects 
of CO2 on crop photosynthesis. At least three other 
factors need to be considered. First is losses to pests. 
Several studies show that insects fed plant material grown in 
elevated CO2 eat more than if fed the same plants 
grown at normal CO2. Thus, losses to pests could 
potentially increase, or investments in pest control could 
increase. Second is weeds. Weeds tend to be stimulated as much 
by elevated CO2 as the crops, and especially for 
crops such as corn with the C-4 photosynthesis. Many of the 
major weeds have normal photosynthesis and would most likely be 
more stimulated than the crops. Third, and probably most 
important, is climate. Evaluating effects of CO2 on 
food production without considering CO2 effects on 
climate is like evaluating DDT based only on its short-term 
effects on insect control. DDT is a very effective insecticide, 
but its long-term impacts on other animals is so negative that 
it would be a big mistake to consider the effects on short-term 
insect control in isolation. The situation for CO2 
is strongly parallel.
    The connection between atmospheric CO2 and 
climate is increasingly well-understood, with a vast body of 
evidence indicating that continued increases in atmospheric 
CO2 and other heat-trapping gasses will lead to 
gradual warming of the Earth, the exact amount is still 
somewhat uncertain. But the Earth has clearly warmed in the 
last century. And the consensus of the Intergovernmental Panel 
on Climate Change, which is the collaborative effort of the 
world's scientists asked to evaluate climate change for the 
world governments, is that this warming already has the 
signature of a human caused component.
    With a warming climate, many, or even all, of the 
stimulatory effects of elevated CO2 on crop 
photosynthesis may be eliminated. Recent models of the impacts 
on U.S. agriculture over the next century, with a combination 
of elevated CO2 and warming, indicate that the 
negative effects of climate change, changes in temperature and 
precipitation, will approximately cancel stimulatory effects of 
increased CO2.
    In natural ecosystems, elevated CO2 has similar 
effects to that on crops, increasing photosynthesis in most 
plants. In experiments where CO2 is increased, plant 
growth often increases, though the growth responses tend to be 
smaller, sometimes even absent in natural ecosystems. Very few 
experiments have examined the combined effects of elevated 
CO2 and climate change. This is an area where 
additional information is critical. If I could have 1 more 
minute, please.
    But plant growth is not the only important property of 
natural ecosystems. Features like recreational value, watershed 
protection, and biological diversity are also important, 
potentially sensitive to the direct and indirect effects of 
elevated CO2. Changes in these values are difficult 
to predict and could be highly variable from place to place, 
but some results are suggestive. In studies of California 
grasslands exposed to elevated CO2, weedy species, 
with profoundly negative effects on grazing and recreational 
values, tend to be those that are most strongly stimulated. 
Many studies report large differences among species and which 
ones are stimulated and which are not by elevated 
CO2, and, so far, it is really difficult to have any 
strong predictions of effects on elevated CO2 on 
biological diversity. If the winters are weedier introduced 
species, the effects on biological diversity could be strongly 
negative.
    In sum, atmospheric CO2 is a critical component 
of the atmosphere, but increases in concentration resulting 
from human actions can have both positive and negative impacts 
on agriculture and on natural ecosystems. Any negative impacts 
expressed through climate change will, of course, affect 
sectors other than agriculture and natural ecosystems.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Field follows:]
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    Mr. Calvert. I thank the gentleman.
    Mr. Idso.
    Mr. Idso. I am going to put a carousel in here. I was 
unaware that I could use slides today, so I just ran over and 
grabbed a few from my motel room.
    Briefly, I would like to thank the chairmen and the 
committee members for having me come out today to testify on 
behalf of carbon dioxide.
    Carbon dioxide is not a pollutant, contrary to what some 
people may tell you. Carbon dioxide is colorless. It is 
odorless, and it is a trace gas that exists in the atmosphere. 
Again, you have heard that its current atmospheric 
concentration is so small, it exists at only 0.036 percent. 
But, again, because of mankind's industrial activities and 
consumption of fossil fuels, the amount of carbon dioxide in 
the air is increasing and probably will double within the next 
century. So, even if it doubles, big deal. It is still going to 
be a trace gas. You have already heard the preliminary argument 
that carbon dioxide is essential to life on the Earth, and I 
concur with that premise.
    Many, many studies have looked at plant responses to 
increasing carbon dioxide. This study represents nearly 1,100 
observations that demonstrates what happens to plant growth 
when the amount of carbon dioxide in the air is doubled. 
Basically, with more carbon dioxide in the atmosphere, plant 
growth is going to increase. And that is exactly what typically 
occurs. And for a doubling of carbon dioxide, this particular 
study showed an average increase in plant growth of 52 percent.
    There are some individuals that have criticized this 
positive growth response, saying that it will not be as great 
due to the fact that out in natural ecosystems there are 
certain environmental stresses and resource limitations that 
may decrease the beneficial growth response of plants to higher 
levels of carbon dioxide. However, in reviewing the literature 
again, looking at nearly 300 published observations, we find 
that just the opposite tends to occur. In other words, plants 
benefit even more in their growth response to carbon dioxide 
when they are being stressed by resource limitations or certain 
environmental factors.
    That brings us to global warming. There is no compelling 
reason to believe that increasing atmospheric carbon dioxide 
levels must be forcing temperatures upward. However, in 
analyzing 42 peer-reviewed studies, it has been determined that 
if the amount of carbon dioxide in the air doubles, plants can 
shift their optimal growth temperature upwards by nearly 6 
degrees celsius. Clearly, this upward shift in growth 
temperature can more than account for any global warming that 
may happen in the next hundred years, as predicted only by 
climate models. In other words, plants will not be forced to 
migrate to cooler regions. Instead, plants will exist at their 
high temperature boundaries and grow even better than they did 
before atmospheric CO2 levels rose or air 
temperatures increased. So plants will maintain their 
biodiversity at the warm ends of their temperature boundaries.
    However, at the cool end of their temperature boundaries, 
due to the warming that is happening, plants can actually 
expand into new regions and begin colonization. When they 
expand there, biodiversity will increase. And as herbivores 
that feed upon the plants follow them into new areas, herbivore 
biodiversity also increases. And then carnivores that eat the 
herbivores follow along. Across the globe many of the 
ecosystems will experience an increase in biodiversity.
    So, in conclusion, I just want to summarize again that 
carbon dioxide is vital for life on the Earth. Plants do 
respond favorably when atmospheric carbon dioxide levels 
increase; they do produce much more yield and fiber. Hence, 
there is more agronomic production to allow for feeding and 
clothing--and timber production--to provide fuel and shelter to 
the increasing population of humanity.
    So I would recommend to the chairmen and the panel today 
that they do whatever they can within their legislative powers 
to ensure that carbon dioxide levels are not restricted, and 
that the amount of carbon dioxide in the atmosphere be allowed 
to continue to increase to provide for the benefit of all 
humanity and biodiversity as well. Thank you.
    [The prepared statement of Mr. Idso follows:]
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    Mr. Calvert. I thank the gentleman.
    Mr. Michaels, I could not help but observe you brought a 
couple of beakers with you. I thought I would ask what that is 
all about.
    Mr. Michaels. Actually, I often travel with these beakers, 
Congressman. [Laughter.]
    Let me change the slide tray, if I could. You have heard 
that there is some controversy about the projections of climate 
change versus reality. I would like to examine just for a 
moment, or illustrate just one of the problems. This is the 
Lawrence Livermore National Laboratory circulation model. I am 
not picking on it; it just happens to be one that is readily 
available. They all do essentially the same thing. This again 
is north, this is south, and this is going up 5,000 feet, this 
is the top, what we call the troposphere, about 40,000 feet. 
You can see that it warms. In fact, it is predicted to warm by 
the ensemble of climate models serve as the basis for the Kyoto 
Protocol 0.23 degrees celsius per decade. That whole zone is 
forecast to warm like that.
    Well, this little beaker here can be our whole atmosphere. 
What I have done here is I have put a little dye in here, I am 
going to fill this up to 1,000 millibar or 1,000 milliliters, 
which is the depth of the tropopause, and you can see what is 
predicted to happen. That is a pretty red cylinder, isn't it? 
Now what happened in the course of the last two decades is that 
while this is predicted to happen, we had a warming in the 
lowest regions of the atmosphere, as I mentioned in my oral 
testimony. The bottom 5,000 feet warmed up. Not as much as the 
whole atmosphere was forecast to warm. So this bottom 5,000 
feet that is in this beaker is pinker than this.
    But our understanding of climate change warms up the entire 
bottom 50,000 feet. So if you want to see how far off the 
projections are that serve as the basis for the Kyoto Protocol, 
I will have to average this warming through the entire 
atmosphere, which I am going to do right now, average the 
surface warming, pour in some nice, clean, unpolluted, no 
CO2--excuse me, I better not use that word 
polluted--nice, clean air into our atmosphere. There is what 
serves as the basis for the Kyoto Protocol, and there is 
reality, Congressman. I think we have a problem. That is why I 
brought these cylinders with me.
    Mr. Calvert. I thank the gentleman.
    Dr. Idso, you recently completed a study claiming that 
higher CO2 levels will reduce world hunger, as you 
were talking about. Please briefly describe the study and 
assess the implications for global food security of Kyoto-style 
policies.
    Mr. Idso. Basically, in the food study, we used United 
Nations food production data, looking at how much food was 
produced in the past, and we determined how much food will 
likely be produced in the future due to mankind's continuing 
ingenuity and agricultural advances. We also know what the 
projected human population is going to be. And assuming that we 
maintain the current standard of living, any additional 
increase in human population should correlate to an equivalent 
increase in agricultural yield.
    By restricting carbon dioxide levels according to the Kyoto 
Protocol, we determined that mankind's ingenuity alone will not 
produce enough agricultural yield to feed the human population. 
However, if carbon dioxide levels are allowed to continue to 
rise unrestricted in the atmosphere, the beneficial growth 
enhancement resulting from that phenomenon, combined with 
mankind's intellectual knowledge and agricultural techniques, 
will make up the difference and the world will be food secure.
    Mr. Calvert. That is interesting. You are almost saying 
that rather than CO2 being a pollutant, it is a 
beneficial gas.
    Mr. Idso. That is precisely correct.
    Mr. Michaels. With all due respect, Mr. Chairman, those 
cold air masses kill a lot more than warm air.
    Mr. Calvert. Dr. Field, to what extent does your research 
show that elevated CO2 levels in general have the 
following beneficial effects: Increased plant photosynthetic 
rates, increased plant water use efficiency, increased plant 
resistance to heat stress, raise the optimum growth temperature 
for plants?
    Mr. Field. Congressman, I believe it is fair to say that 
the sum of approximately 3,000 studies now published in the 
literature indicate that elevated CO2 has effects on 
each of those properties in the direction that you have 
indicated. Plants generally do better under elevated 
CO2; better in terms of growth rate, in terms of the 
high temperature performance, and in terms of ability to 
tolerate water limitation.
    I will say, however, that that does not necessarily speak 
directly to the changes in plant production under a future 
scenario that includes the combination of warming and elevated 
CO2. The issue is that elevated CO2 helps 
the plants cope with conditions that are otherwise deleterious, 
but it may or may not overcome the deleterious effects.
    Mr. Calvert. Yes, because it seems Dr. Idso would say, I 
presume based upon your testimony and the previous question, 
that rising temperatures would be more likely to enhance the 
benefits of CO2 enrichment. Would that be correct, 
Mr. Idso?
    Mr. Idso. That is correct. Based on the research that I 
have looked at, the 42 studies, there is a positive interaction 
between temperature and carbon dioxide, wherein the 
CO2-induced growth response is typically greater 
with higher temperatures.
    Mr. Calvert. Do you have any comment about that, Mr. Field?
    Mr. Field. The important issue to keep in mind about the 
interaction between climate change and elevated CO2 
is that climate change is not just warming. Much of the world 
is projected to suffer increased water shortages under a global 
scenario. The lack of water and the elevated crop production 
scenario all tend to depress crop production relative to what 
you would expect under current conditions. And as I said in my 
testimony, the current ensemble estimate is that, in general, 
the beneficial effects of elevated CO2 will more or 
less cancel the deleterious effects of the climate changes in 
the United States. In other parts of the world, particularly in 
the tropics, the effects of the warming are expected to be 
greater than the effects of the elevated CO2, with 
overall deleterious effects on food production.
    Mr. Calvert. I presume, Mr. Michaels, you want to comment 
on that?
    Mr. Michaels. Yes. Carbon dioxide has increased effectively 
from about 270 parts per million background from the beginning 
of the Industrial Revolution to effectively about 450 today 
with all the greenhouse gases in the atmosphere. We have these 
projections for increased drought, that I just heard about, 
interacting with the food supply. Fortunately, we do have a 
record of this. I thought you might like to see this slide. The 
area on the bottom is the intense drought history in North 
America. What you can see is there is no change whatsoever from 
1895 to now. If we take a look at the wetness in North America, 
it has increased. So what we have done is we have not increased 
the droughtiness, we have increased the moisture in the 
atmosphere, and, by ameliorating the coldest air masses, we 
have slightly lengthened the growing season. Well, North 
America happens to be the world's bread basket.
    So I think these arguments deserve a little bit of 
attention to reality before they are tendered. Thank you.
    Mr. Calvert. Mr. Ehlers.
    Mr. Ehlers. I apologize that I had to go to another 
committee to vote and missed the testimony, although I had read 
it before coming here.
    The question that is being heard today is, is 
CO2 a pollutant, and does EPA have the power to 
regulate it? That was addressed primarily by the attorneys in 
the first panel. I take it that you are not really addressing 
that so much as the issue of whether or not the increased 
CO2 contributes to global warming or to global 
climate change. Am I correct? And I have to ask this simply 
because I was not here.
    Mr. Field. That is correct.
    Mr. Ehlers. That is correct. OK. And from your written 
testimony, I did not reach any conclusions as to what you were 
saying, other than increased CO2 promotes plant 
growth. Increased CO2, according to Mr. Michaels, is 
not that much of a problem. And Mr. Field, you say it may well 
be a problem. Is that a fair characterization or summary of the 
testimony?
    Mr. Field. Yes, I agree.
    Mr. Ehlers. OK. Now what I would like to get at, I am not 
as concerned personally, as I mentioned earlier, about the 
global warming because I think the jury is out on that one yet. 
But I think the scientific jury is still open but starting to 
reach some conclusions about global climate change. By that, I 
mean the amount of vapor in the air, particularly the number of 
clouds which have an impact on both the warming of the Earth 
and the reflection back to space, the increased rain in some 
locations, increased drought in others. I think one of the key 
points in my mind, and I would like your comments on this, is 
that it is going to be quite some time before we really 
understand these effects well enough to tell what the net 
impact is, particularly, the greatest difficulty is going to be 
to state in some fairly precise fashion what the impact is for 
certain places on the surface of the Earth. It seems to me we 
are likely to have beneficial effects in a number of places, we 
are likely to have deleterious effects in a number of other 
areas.
    I am just wondering if any one of you can lay out for me a 
game plan of how you and other members of the scientific 
community are going to approach this in terms of trying to pin 
down, as best you can as time goes on, what these climate 
change effects are. Not just what climate change takes place, 
but the effects of that change. As starting from the most 
certain, we know that CO2 is increasing, no question 
about that, we even have a fairly good idea of the projected 
rate it will increase. The next level of certainty is what is 
the impact of this on global warming. The next level, what 
impact is it on global climate change. And finally, the 
question I am raising, is what are the specific pluses and 
minuses of the climate change in various locations of the 
Earth. Now, what would be the program to determine that? 
Roughly, what is the time scale of knowing results well enough 
so that we can take legislative action?
    Mr. Field. Congressman, I think you have characterized the 
problem in a very eloquent way. The easiest problem to get a 
quantitative handle on is the CO2 rise. The second 
problem in terms of increasing difficulty is whether or not 
there has been warming. Dr. Michaels has already addressed 
that, and, I think importantly, you could see from his results 
that the actual warming to date is within the range of the 
climate model predictions. The next most difficult problem that 
we still have not addressed in a comprehensive way is the whole 
suite of changes in climate that accompany the warming. And the 
most difficult challenge is nailing down the spatial locations 
of the climate variations.
    The biggest component of progress in terms of all of those 
is to get the climate models to work in a way so that they 
accurately reflect the physical processes in the environment, 
including a number of feedbacks that have been difficult to 
represent. There has been tremendous progress over the last 10 
years or so, so that climate models are accurately reproducing 
temperatures. The best models are very, very close to the 
observed record. But I think the climate community is also very 
clear about the prospect or rapid increases in the accuracy of 
regional predictions, which will probably not come within the 
next few years. I think we are looking out at least a period of 
a decade until we can be confident about regional changes 
either in temperature or in precipitation.
    Mr. Ehlers. Just a quick question on that. Is that because 
of the need for larger computers, or is it because of 
deficiencies in the model, or is it because we have too course 
a grid in many parts of the globe?
    Mr. Field. There are a number of factors that contribute to 
it. Part of it is that the climate models are, as you know, 
very, very complicated computational problems and we have been 
working at the very limit of the ability of the super computers 
to process them. Another limitation, however, has been that the 
observational evidence on the nature of some of the feedback 
mechanisms that could be very powerful is still incomplete and 
we need additional observations. Many of those are coming from 
recent satellites launch by NASA and the European Space Agency. 
NASA is planning major launches in the next 2 years that should 
address a number of these mechanisms. And it is really the 
feedback between the improved observations and advances in the 
computational power that will let us address the questions over 
the next few years.
    Mr. Michaels. Congressman, if I could----
    Mr. Ehlers. Yes.
    Mr. Michaels. Let me just show you something that I showed 
earlier that I think you are going to find quite interesting. 
This is a suite of general circulation climate models. You 
probably recognize some of these acronyms here. That is 
National Center for Atmospheric Research. That is the British 
Hadley Center. This is the Geophysical Fluid Dynamics 
Laboratory. And each one of these models has different 
assumptions.
    This one here, down here, I adjusted for the actual 
increase in carbon dioxide that has been observed in the last 
30 years. These models tend to use too large of an increase; 
they tend to use 1 percent per year. The actual integrated 
number allowing for all the trace gases, and this is according 
to James Hansen from NASA, is actually about 0.4 percent per 
year over the course of the last couple of decades.
    But what I want to draw your attention to, Congressman, as 
a scientist, what you see here is that the functional form of 
the response of each of these is the same, isn't it? They are 
all straight lines. So all that differs between these models is 
the slope of the line. Now, having established that, I will 
then submit to you what these models say is that once 
greenhouse warming begins, it takes place as a straight line. 
Remember, these models all have exponential forcings in them, 
Congressman; they have percent per year. So you have an 
exponential change in the greenhouse forcing but you get a 
linear change in the temperature.
    The United Nations has said that there is a discernible 
human influence on global climate. Let us assume what people 
think they said is what they said, that changing the greenhouse 
effect is altering the climate. The next question is, is the 
temperature changing in a linear fashion, and, if it is, then 
nature has decided the slope of this line. And she has. It is 
this line right down here, at 1.3 degrees celsius per decade. 
Unless, Congressman, the functional form of every climate model 
is wrong. So I think we know the answer now. Thank you.
    Mr. Ehlers. Let me just ask one related question in terms 
of the fact that this is a linear----
    Mr. Michaels. They all are.
    Mr. Ehlers. Even though the forcing functions, as you said, 
are exponential in nature. Now, does this have to do with the 
fact that CO2, as an example, is pretty well opaque 
already and so that it----
    Mr. Michaels. It eventually saturates for each given wage 
length, that is right.
    Mr. Ehlers. They are logarithmic because you are just 
dealing in the wings of the curve, is that correct?
    Mr. Michaels. Correct.
    Mr. Ehlers. So that would explain why you get a linear 
function.
    Mr. Michaels. Plus the oceanic thermal lag, also.
    Mr. Ehlers. OK.
    Mr. Calvert. Gentlemen, we probably have time for Mr. Barr 
to ask a couple of questions, and then we have to go for a 
vote.
    Mr. Ehlers. Oh, I am sorry. I thought he had already.
    Mr. Calvert. No, he has not asked.
    Mr. Ehlers. In that case, I will withhold the rest of my 
questions.
    Mr. Barr. I will yield you some time since you obviously 
know more about linear functions, exponential functions, and so 
forth, all of which have nothing to do with the real world of 
politics. [Laughter.]
    We have this marvelous exhibit here that seems self-
evident. I am sure that if a picture is worth 1,000 words, this 
was worth, at least to myself and I suspect the chairman, who 
are not as educated as you are, Professor, in the 
technicalities of this stuff, it is probably worth about 
10,000. But that certainly does not stop politicians from 
completely ignoring it. It may have something to do with the 
rose-colored glasses they wear. I think that would cancel out 
the differences in coloration in the tubes there. [Laughter.]
    But it really is very, very interesting. I appreciate, Mr. 
Chairman, you and Chairman McIntosh bringing these two panels 
of legal experts and scientific experts here today.
    In listening to the different conversations here, I think I 
understood Dr. Field to contend that a warmer climate may 
cancel out many, or even all, of the benefits of the 
CO2 enrichment that you discussed, I would just ask 
you, Mr. Idso, would rising temperatures be more likely to 
negate or enhance the benefit of CO2 enrichment?
    Mr. Idso. Based on all the literature that I have seen 
published out there, in the clear majority, rising temperatures 
would enhance the CO2 benefit. In cases where it 
negates some of the benefit, what I have seen, that negating is 
just very small, so there are still net positive gains in the 
long run. You just do not have as great an increase, so it 
would be slightly reduced by the high temperature in those few 
cases.
    Mr. Barr. And I presume that these studies that you are 
talking about are based on a number of different experts and 
studying scientific data over long periods of time and with all 
sorts of variables and so forth?
    Mr. Idso. With respect to temperature, there are 42 studies 
that I am aware of that I have actually looked at and analyzed. 
The literature is just now looking at different types of 
interactions. You saw earlier, I actually put the slide up 
showing the interactive growth response of plants to elevated 
carbon dioxide when they lacked water. In those cases where 
water is limiting plant growth, you do not see a cancellation 
of the CO2-induced growth benefit. Typically, the 
growth benefit is even greater when plants are lacking water in 
the soil. So you do not see it negating or canceling out their 
positive growth responses to atmospheric CO2 
enrichment.
    Mr. Barr. Was this discussed in that great scientific 
treatise ``Earth in the Balance''?
    Mr. Idso. Probably not.
    Mr. Field. The answer is, no.
    Mr. Barr. I did not think so.
    Unfortunately, Mr. Chairman, and this is another reason why 
it is good to have this hearing today, these findings and these 
conclusions do not make the headlines of the papers, only the 
scare stories about global warming and so forth do. So I 
appreciate all three of you gentlemen bringing your expertise 
here and, through you, the expertise of many of your colleagues 
reflected in these studies. Thank you all very much.
    Thank you, Mr. Chairman.
    Mr. Calvert. I thank the gentleman.
    I thank the witnesses for their testimony today, and those 
in the audience who attended. It was an interesting hearing. We 
are adjourned.
    [Whereupon, at 4:52 p.m., the subcommittees were adjourned, 
to reconvene at the call of their respective Chairs.]
    [Additional information submitted for the hearing record 
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