U.S. GOVERNMENT PRINTING OFFICE

62–900 CC WASHINGTON : 2000

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

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

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

BOB BARR, Georgia

LEE TERRY, Nebraska

GREG WALDEN, Oregon

HELEN CHENOWETH, Idaho

DAVID VITTER, Louisiana

DENNIS J. KUCINICH, Ohio

TOM LANTOS, California

PAUL E. KANJORSKI, Pennsylvania

BERNARD SANDERS, Vermont

HAROLD E. FORD, JR., Tennessee

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

Page

III

COMMITTEE ON SCIENCE

HON. F. JAMES SENSENBRENNER, JR., (R–Wisconsin), Chairman

SHERWOOD L. BOEHLERT, New York

LAMAR SMITH, Texas

CONSTANCE A. MORELLA, Maryland

CURT WELDON, Pennsylvania

DANA ROHRABACHER, California

JOE BARTON, Texas

KEN CALVERT, California

NICK SMITH, Michigan

ROSCOE G. BARTLETT, Maryland

VERNON J. EHLERS, Michigan*

DAVE WELDON, Florida

GIL GUTKNECHT, Minnesota

THOMAS W. EWING, Illinois

CHRIS CANNON, Utah

KEVIN BRADY, Texas

MERRILL COOK, Utah

GEORGE R. NETHERCUTT, JR., Washington

FRANK D. LUCAS, Oklahoma

MARK GREEN, Wisconsin

STEVEN T. KUYKENDALL, California

GARY G. MILLER, California

JUDY BIGGERT, Illinois

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

JACK METCALF, Washington

RALPH M. HALL, Texas, RMM**

BART GORDON, Tennessee

JERRY F. COSTELLO, Illinois

JAMES A. BARCIA, Michigan

EDDIE BERNICE JOHNSON, Texas

LYNN C. WOOLSEY, California

LYNN N. RIVERS, Michigan

ZOE LOFGREN, California

MICHAEL F. DOYLE, Pennsylvania

SHEILA JACKSON-LEE, Texas

DEBBIE STABENOW, Michigan

BOB ETHERIDGE, North Carolina

NICK LAMPSON, Texas

JOHN B. LARSON, Connecticut

MARK UDALL, Colorado

DAVID WU, Oregon

ANTHONY D. WEINER, New York

MICHAEL E. CAPUANO, Massachusetts

BRIAN BAIRD, Washington

JOSEPH M. HOEFFEL, Pennsylvania

DENNIS MOORE, Kansas

VACANCY

SUBCOMMITTEE ON ENERGY AND ENVIRONMENT

KEN CALVERT, California, Chairman

CURT WELDON, Pennsylvania

JOE BARTON, Texas

DANA ROHRABACHER, California

VERNON J. EHLERS, Michigan

DAVE WELDON, Florida

GARY MILLER, California*

JUDY BIGGERT, Illinois

JACK METCALF, Washington

F. JAMES SENSENBRENNER, JR.,

Wisconsin+

JERRY F. COSTELLO, Illinois**

MICHAEL F. DOYLE, Pennsylvania

JAMES A. BARCIA, Michigan

EDDIE BERNICE JOHNSON, Texas

ZOE LOFGREN, California

JOSEPH M. HOEFFEL, Pennsylvania

VACANCY

RALPH M. HALL, Texas+

(V)

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

(1)

IS CO2 A POLLUTANT AND DOES EPA HAVE

THE POWER TO REGULATE IT?

WEDNESDAY, OCTOBER 6, 1999

HOUSE OF REPRESENTATIVES, SUBBCOMMITTEE ON NA- TIONAL 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

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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

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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:]

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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:]

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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.]

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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

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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

13

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

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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

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does not mean that the SIP process is useless in addressing longrange 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 technologyforcing 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

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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

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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 overliteralism, 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.

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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,

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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.

[The information referred to follows:]

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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.

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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

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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?

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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 absoVerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1
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lutely 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?

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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

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mentally 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 costeffective 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

75

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.

76

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.

77

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

78

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

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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. Twohundredths 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 Nin ̃o in 1998 and that is over; we are not having monthly

press conferences now about the temperature of the planet being

warmer than heck.

80

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

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sidered. 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.

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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, bioVerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1
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diversity 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,

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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

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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

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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

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nize 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

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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.

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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 follows:]

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Æ