1) The EPA rejected a petition to regulate carbon dioxide emissions under the Clean Air Act, as the statutory language and legislative history of the CAA make clear it does not authorize such regulation. 2) While some argued the CAA provides authority to regulate CO2, the Bush Administration budget includes $4.5 billion for climate change initiatives and abides by the rule of law in not regulating under the CAA. 3) The CAA does not mention CO2 until 1990 amendments where proposals to regulate its emissions were rejected, and Congress authorized only study of some greenhouse gases, not regulation.

1. ARMIS 152. Pagel of3
RECORD TYPE: FEDERAL (NOTES MAIL)
( CN=William F. Holbrook/OU=CEQ/O=EOP@Exchange [ CEQI
CREATOR:William F. Holbrook
2003 13:36:26.00
CREATION DATE/TIME:29-AUG-
SUBJECT:: Re: EPW: C02 AND CLEAN AIR ACT
( "Catanzaro, Micha
TO:"Cataflzaro, Michael (EPW)" <MichaelCatanzaro~epw.senate.gov>
READ:UNKNOWN
TEXT:
folks of the other
Had a thought on climate/carbon. Might remind
FutureGen, hydrogen
specific programs beyond the FY03/04 budget figures.
fuel, climate strategy, etc.
- Bill
From: "Catanzaro, Michael (EPW)" <MiichaelCatanzaro~epw.senate.gov>
on 08/29/2003 12:21:35 PM
Record Type: Record
To: "Catanzaro, Michael (EPW)" <MichaelCatanzaro~epw.senate.gov>
cc:
Subject: EPW: C02 AND CLEAN AIR ACT
C02 AND THE CAA
to regulate carbon dinoxide
Yesterday, the EPA rightly rejected a petition
emissions under the Clean Air Act. De spite earnest protestations to
Counsel Jonathan Cannon;
contrary--the infamous 1998 memo from EPA General
testimony, based on that memo, from firmer Clinton EPA Administrator Carol
statutory language and
Browner; histrionics from environmental groups--the
on the matter: the CAA
legislative history of the CAA are absolutely clear
provides no authority for EPA to take such a step.
had this to say: "They're
Jonathan Cannon, in responding to EPA's action,
in the heart for any
[the Bush Administration] trying to put a stake
possible existing avenue for dealing kith global climate change either by
this administration or any future admIinistration."1
$4.5 billion for his
Not quite: President Bush's FY 2003 bpIdget has
study of climate
climate change initiative, which dirercts research'and
change over the next decade. As to tihe legal question, the Bush
rule of law. Lastly, if
Administration is, contra Cannon, abiding by the
Cannon is so confident that the CAA confers authority on EPA to regulate
with it?
C02, why didn't the Clinton EPA follow through
A few notable points on the CAA and C02:
Statutory Issues
*The CAA did not refer, to C02 until passage of the 1990
debated and
amendments. In those amendments, Congress specifically
C02 emissions.
ultimately rejected proposals to a~llw EPA to regulate
not
2 ~Congress authorized EPA only to studV certain greenhouse gasses,
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as
regulate them. For example, CAA Section 103(g) lists carbon dioxide
a "basic engineering
one of several items to be considered as part of
and demonstrate
research and technology program" to "develop, evaluate
nonregulatory strategies and technologies."
*Global warming is mentioned in CAA Section 602 (e),
of certain listed
directing EPA to examine the global wIarming potential
depletion. However,
substances that contribute to stratospheric ozone
this provision--the only one in the statute that mentions global
that it "shall not be
warming--is accompanied by an express a~dmonishment
construed to be the basis of any additional regulation under [the CAA]"
[emphasis added).
*The CAA expressly podsauthority to regulate numerous
Sections 108 and 109,
substances specifically referenced in the statute.
"criteria pollutants;"
for example, authorize EPA to regulate so-called
hazardous air pollutants
section 112 directs EPA to designate a~d regulate
("HAPs"), and lists 190 specific such pollutants Congress determined are
VI of the CAA authorizes
the most important to regulate. Similarly, Title
the stratospheric ozone
EPA to list and regulate substances, which deplete But neither
layer, and designates 53 substances toIbe so regulated.
global warming generally, nor carbon d~ioxide specifically, are mentioned
Congress.
anywhere in this regulatory scheme dev~eloped by
* ~~~What of the argument tIhat carbon dioxide may be regulated
HAPs under CAA
as a HAP? Each of the 190 substancesilisted as
in small dosages. Carbon
Section 112 is a poison, producing toxic effects
dioxide, by any stretch of the imagination, is not a poison. No
mentioned
surprise, then, that C02 is not among-the 190 substances
in Section 112.
Legislative History
*The final CAA legislation that emerged from the
a stratospheric ozone
conference committee and became law i~1990 contains
Senate versions.
title that was a compromise between the House and
in elmntgth
However, the House version prevailed completely
language in the Senate bill that would have authorized regulation of
dioxide.
non-ozone depleting greenhouse gases such as carbon
*For example, Title VIJ, as enacted, did not include the
substances" in
Senate's language authorizing EPA to tegulate "manufactured ozone layer
deplete the
terms broad enough to cover both substances that
but which affect global
and substances that do not deplete the ozone layer
requires the Administrator
climate. Tnstead, CAA Section 602(a) ~s enacted
would be phased out
to list "Class T" and "Class II" substances that
pursuant to CAA Sections 605 and 606. These substances are defined as
layer--note that nothing
those that could affect the stratospheric ozone
climate change. And
in the definition of such substances refers to global
in the CAA
there are no findings or purposes included anywhere
to regulate greenhouse
specifically regarding global warming or the need
gases, as there had been in the, SenatIe bil
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