Petition seeks new EPA pathway to require greenhouse gas curbs

An environmental group affiliated with New York University’s law school is petitioning the Environmental Protection Agency (EPA) to wield a seldom-used section of the Clean Air Act to require greenhouse gas emissions curbs.

The petition urges EPA to act under Section 115 of the air law, which enables EPA to demand action to curb pollution that’s endangering public health or welfare in foreign countries.

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“Section 115 provides a mandatory, efficient, and comprehensive approach to regulating greenhouse gas emissions. It is therefore the preferred mechanism under the Clean Air Act for responding to the dangers of climate change,” states the Institute for Policy Integrity’s petition, to be filed Tuesday.

The attorneys, in the petition and an accompanying statement, argue that Section 115 should be employed to have EPA require states to control emissions, while providing the ability to use “flexible regulatory tools like market incentives” such as cap-and-trade.

“EPA must now review Policy Integrity’s petition and respond within a ‘reasonable time frame.’ If accepted, EPA would likely issue orders to the governors of all fifty states, instructing them to develop plans to roll back greenhouse gas emissions – potentially by using cap‐and‐trade or other market mechanisms,” the group said.

The attorneys also threatened to file a lawsuit if EPA denies the petition or does not respond, noting they can “pursue appropriate legal action to force the agency to respond.”

The Institute for Policy Integrity’s petition is part of environmentalists’ stepped-up effort to win executive action on climate change at a time when global warming legislation is frozen in Congress.

The idea of using Section 115 to address greenhouse gases has been batted around policy circles for years. Some experts are very critical of the concept.

A 2010 paper by several experts with Resources For the Future (RFF), an environmental think tank, said use of the brief Section 115 would be highly vulnerable to challenge.

“Courts usually take a dim view of attempts by agencies to use short, vague statutory language to justify sweeping regulatory changes,” the RFF scholars state.

“Section 115 may appear to provide a perfect foundation for [greenhouse gas] regulation, but the EPA would risk putting great effort into developing a regulatory program only to discover that its foundation is built on sand,” they argue.

But the Institute for Policy Integrity petition says that EPA would be on solid legal footing using Section 115.

The section requires that EPA receive reports from a “duly constituted international agency” showing that U.S. emissions are harming a foreign nation; and that the nation has “reciprocity” with the U.S., which means the country has “has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country.”

The petition argues that “all the prerequisites for action have been satisfied for greenhouse gases.”

“EPA has already acknowledged – based in part on reports from the Intergovernmental Panel on Climate Change – that greenhouse gases from the United States endanger foreign countries; and other countries, such as Canada, have given the United States essentially reciprocal rights. EPA therefore must direct states to control their greenhouse gas emissions under Section 115,” the petition argues.

China overtook the U.S. as the world’s top greenhouse-gas-emitting nation more than a half-dozen years ago, but aggregate historical emissions from the U.S. remain far higher.

The Institute says U.S. emissions will “likely impact extreme weather events, food production, infectious disease, water scarcity, coastal erosion, and economic development across every continent.”

EPA has begun moving ahead with greenhouse gas regulations under other portions of the sweeping air pollution law.

It has proposed carbon emissions standards for new power plants under Section 111, which enables regulators to set standards for specific categories of industrial pollution sources.

The agency is also under pressure to ensure rules for existing power plants under the portion of Section 111 that enables the regulators to require states to act.

The new petition argues that Section 111 isn’t as well suited to controlling emissions as Section 115, or another provision of the sweeping law (Section 615) that was crafted to give EPA more tools to protect the ozone layer.

Nonetheless, it urges EPA – under this “third-best option” – to broaden its use of Section 111 by imposing standards on a wider range of pollution sources.


—This post was updated at 7:32 a.m.