Carbon Dioxide: Our Newest Pollutant

Ever since the controversial Supreme Court decision in Massachusetts v. EPA, carbon dioxide has been treated as a pollutant under the Clean Air Act. This article argues that this decision was wrong as a matter of statutory construction and sound as a matter of sound social policy: the CAA is the wrong vehicle to deal with either carbon dioxide of global warming. On the present state of the evidence, the case for strong restraints on carbon dioxide emissions has not been made. The evidence in favor of the close linkage between carbon dioxide and global warming has not been clearly established and domestic American initiatives are in any even likely to produce no discernible reduction in carbon dioxide levels in the absence of any agreement that binds other nations, especially China and India. In the short term at least an approach of watchful waiting seems preferable to any massive initiative. In the interim, efforts to deal with other greenhouse gases and to encourage wide spread technological improvements are more attractive policy alternatives. I. WHY CARBON DIOXIDE? It was my great pleasure to come to Suffolk University Law School to join the ranks of the many distinguished individuals who have delivered the Donahue Lecture. The topic of this lecture is the simple chemical, carbon 1. Laurence A. Tisch Professor of Law, New York University School of Law; The Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; and James Parker Hall Distinguished Service Professor, The University of Chicago;. For publication, I have updated it to take into account the major events that have occurred following its delivery. 526-RAE-CO2 (DO NOT DELETE) 8/17/2010 2:10 PM 798 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:797 dioxide, which is, now officially, our newest pollutant. The first question to ask is why I chose this particular title for carbon dioxide, a substance that predates the industrial revolution and is, in limited quantities at least, necessary for the survival of life as we know it on this planet. The answer relates to complexities that lie beyond my control under the peculiar statutory framework for dealing with pollutants under the Clean Air Act (CAA), which is administered by the Environmental Protection Agency (EPA). Pollutants must be registered under the CAA, and there has been a huge dispute—which I shall explain later on—about whether or not carbon dioxide should be registered as such under the Act. After much internal debate, the Bush Administration said no. The states, led by Massachusetts, thought that the answer ought to have been yes. They forced the issue to the Supreme Court, which held in Massachusetts v. EPA that, although the EPA was not necessarily bound to make that “endangerment” determination, it was nonetheless authorized to do so because carbon dioxide fell within the CAA’s definition of an “air pollutant.” Under the CAA, an “air pollutant” is “any physical [or] chemical . . . substance or matter which is emitted into or otherwise enters the ambient air.” In a world of small coincidences, one of my former students, Liza Heinzerling, has played an active role in this debate. She was a lead author of the plaintiff’s brief in Massachusetts v. EPA, and is now a key member of the Obama Administration’s climate change team at the EPA. Lo and behold, the position of the Bush Administration has been reversed as Lisa Jackson, the head of the EPA, has made an endangerment finding on carbon dioxide, as well as five other greenhouse gases (GHGs)—methane (CH4), nitrous oxide (N2O), 2. “The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Clean Air Act § 202(a)(1), 42 U.S.C. § 7521(a)(1) (2006). 3. 549 U.S. 497 (2007). 4. See id at 528-29, 534-35 (holding carbon dioxide constitutes “air pollutant,” but reserving question whether EPA endangerment finding required). 5. 42 U.S.C. § 7602(g) (2008). In full, the CAA defines “air pollutant” as follows: The term ‘air pollutant’ means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used.” Clean Air Act § 302. Note that under this definition, oxygen could easily be regarded as a precursor of carbon