On the long list of things that keep coal-industry executives awake at night is the possibility that the Environmental Protection Agency (EPA) will begin to regulate carbon dioxide as a pollutant. Now it seems that nightmare is at hand.
On Feb. 17, EPA administrator Lisa Jackson announced that the agency would reconsider a Bush Administration decision not to regulate CO2 emissions from new coal power plants. The next day, she backed up that statement by telling the New York Times she was considering acting on an April 2007 Supreme Court decision that empowers the EPA to regulate CO2 as a pollutant under the Clean Air Act. If the EPA exercises that authority as expected a process that would likely play out over months it could potentially put in place one of the farthest-reaching regulations in U.S. history, affecting the way we use electricity, the way we drive and more. (See pictures of the world's most polluted places.)
"What this says is that the Clean Air Act already provides the government with the chance to do something about global-warming pollution," says David Doniger, policy director for the Natural Resources Defense Council's climate center. "We have a right to expect the government to carry out the existing law."
However, carrying out the law will be anything but simple, nor will it be the most efficient way to protect the environment. The 2007 court case in question gave the EPA the authority to regulate CO2, when the Supreme Court ruled in favor of 12 states, led by Massachusetts, that brought suit against the government to force it to regulate greenhouse gases. The Bush Administration largely ignored the implications of that decision for the next two years, likely in part because of complaints from industry that regulating CO2 would be expensive and maddeningly complicated. That's a point well taken. Something needs to be done to slow the rise in U.S. carbon emissions, but while in the absence of a national carbon-cap law federal regulation may be our only short-term option, it's not the best-case scenario. "It's a backup plan," says Doniger. (Watch a video about the next big biofuel.)
As the law is written, using the Clean Air Act to regulate greenhouse-gas emissions directly would be unreasonably difficult, because of carbon dioxide's sheer ubiquity. In 2000, the U.S. emitted less than 18 million tons of the pollutant sulfur dioxide, chiefly from cars, power plants and factories. In the same year, national CO2 emissions reached nearly 6 billion tons, from virtually every aspect of modern life. Regulating emissions would be like trying to gather up the ocean. In addition, the Clean Air Act technically requires "major" sources of pollutants meaning those that emit more than 250 tons a year to acquire costly and time-consuming permits before building or expanding. Again, because carbon is so ubiquitous, establishments as small as a fast-food franchise could emit more than the limit, which is why conservative critics have nicknamed the 2007 decision the Dunkin' Donuts rule.
In reality, observers say the EPA is unlikely to pursue small emitters in any carbon regulation, instead focusing on reining in big sources like power plants and automobiles, which together are responsible for some 60% of U.S. carbon emissions. Such action could have momentous consequences for the scores of new coal power plants that have been proposed across the U.S., an expansion that environmentalists are dead set against.
Regulating greenhouse gases from power plants could bring a total halt to carbon-intensive electricity, since there is currently no economical way to capture and store the plants' carbon emissions. That, in turn, could lead to an escalation of costlier but low-carbon alternatives like natural gas, wind or solar by default, which critics say would put a drag on the economy. (Environmentalists and their allies in the White House argue that the cost of curbing carbon emissions will be more than manageable and will help push the U.S. economy to a cleaner and more sustainable future.)
The EPA could also exercise the power it has to regulate carbon emissions from cars perhaps by insisting on stronger fuel-economy standards like the ones being advanced by California or by mandating a carbon standard for fuels. "It's really critical, when the country is making a decision to pour massive capital investment into new cars and power plants, that the moves are harmonized to address greenhouse-gas emissions," says Vickie Patton, a senior attorney for the Environmental Defense Fund.
Even most environmentalists, however, don't really want to see the EPA take all the responsibility for reducing carbon emissions, using a law that was drafted before climate change was a known threat. Instead, they see federal regulations as a protective stopgap measure until Congress can pass national carbon cap-and-trade legislation specifically tailored to global warming. "It's not going to be easy, but it can be done," says Doniger. Since the only thing that coal-industry executives and other fossil-fuel peddlers fear more than a carbon cap is EPA regulation, he might just be right.