The dangerous myth that the EPA’s endangerment finding can somehow stop dangerous warming if the climate bill dies

Over and over again, in e-mails and comments and blog posts, I hear some enviros saying that it doesn’t matter if Waxman-Markey fails, since EPA can use the endangerment finding to regulate CO2 as well or better.  That dangerously mistaken view would appear to be creating a dangerous apathy among many progressives and environmentalists, as I’ll discuss shortly.

Certainly, the finding was a major environmental achievement by this administration (see “EPA finds carbon pollution a serious danger to Americans’ health and welfare requiring regulation“).  But it can’t take the place of Congressional action for three key reasons:

  1. It would be difficult for the EPA to enact a CO2 cap and trade without congressional cooperation,” as John Podesta, former Clinton Administration Chief of Staff and now CEO of CAP, recently said.  The endangerment finding is far better suited to addressing new sources that it is existing sources.
  2. A subsequent president could trivially stop or endlessly delay whatever actions Obama was able to start with the EPA.
  3. If Congress rejects the binding targets of W-M, then we have no basis for negotiating with other countries as part of the UN Framework Convention on Climate Change process.  Indeed, we would have no basis for a deal with China.  A promise by Obama that he would try to use the limited authority EPA has to commit to a modest cut in CO2 by 2020 — and deep cuts in 2030 and 2050 — would be seen as meaningless.

Let me expand on the first point.

The origin of the endangerment finding was an April 1998 memo that EPA general counsel Jonathan Cannon wrote in response to then administrator Carol Browner in response to House Republicans.  It is titled, “EPA’s Authority To Regulate Pollutants Emitted by Electric Power Generation Sources.”  I highly recommend reading the entire memo since it’s not long, and it would certainly be the basis of any lawsuit brought against the EPA if it tried to overstepped the bounds of what the Clean Air Act allows.

As Greenwire (subs. req’d) explained in a long 2008 story, it was this memo that served as the basis for the original petition by The International Center for Technology Assessment (ICTA) and other groups to regulate greenhouse gases from new motor vehicles, which is what ultimately led to the successful Supreme Court decision that found CO2 was a pollutant that could be regulated under the CAA.

Here is the final paragraph of that memo:

With the exception of SO2 provisions focused on acid rain, the authorities potentially available for controlling these pollutants [including CO2] from electric power generating sources do not easily lend themselves to establish market-based national or regional cap-and-trade programs, which the administration favors for addressing these kinds of pollution problems. Under certain limited circumstances, where states fail to carry out their responsibilities under Title I of the Act, EPA has authority to take certain actions, which might include establishing a cap-and-trade program.  However, such authority depends on the actions or inaction of the states.

The endangerment finding is very poorly suited to issuing market-based regulations of existing sources. It is quite safe to say that if the EPA tried to impose a shrinking cap on CO2 using the endangerment finding after Congress had explicitly rejected that, then the whole mess would end up in the courts for many, many years.  Indeed, individual states that didn’t want regulation could by themselves slow down the process immensely even before the court showed up.  And any future GOP Administration could easily issue a finding that killed or stopped the whole process.

I do think the endangerment finding represents an important motivator for Congressional action, since industry dislikes uncertainty and lawsuits.  The administration has dealt with new vehicles for now (see “Obama to raise new car fuel efficiency standard to 39 mpg by 2016 “” The biggest step the U.S. government has ever taken to cut CO2.“).  But if W-M dies, the finding does give the EPA authority it needs to block the vast majority of new coal plants until carbon capture and storage becomes practical and affordable “” which is probably a decade away and possibly two (see “Is coal with carbon capture and storage a core climate solution?“).

I think it would be valuable for EPA to keep this authority under climate legislation, but is not one of the top five things I would change about W-M if I could.  Why?  Because I don’t think the Obama administration was going to stop every new coal plant anyway.  And I do think W-M would effectively stop as many new dirty coal plants as the endangerment finding.  Indeed, the economic crash coupled with the $90 billion for efficiency and renewables in the stimulus has probably finished off most of the rest of the planned coal plants (see “EIA projects wind at 5% of U.S. electricity in 2012, all renewables at 14%, thanks to Obama stimulus!“).

There just isn’t a lot of room for new coal in a country where electricity demand has slowed sharply and new renewables (plus cheap gas) provide the most attractive options.  Passage of Waxman-Markey would certainly finish off the vast majority of the rest of those plants.

Waxman-Markey would finish the massive transition to a low-carbon, clean energy economy that was begun in the stimulus.  It can serve as the basis of international negotiations that can set the entire world on such a transition.  And it can be strengthened over time.

Many legitimate critiques of W-M can be made, but it is simply irresponsible to assert that doing nothing is an option with superior environmental outcomes.  Quite the reverse.  W-M would sharply reduce CO2 emissions from coal plants within a decade and it would lead to a virtually carbon-free energy system within a four decades.   And from an international perspective, failure of W-M all but eliminates what small chance the world has to avert catastrophic warming.

17 Responses to The dangerous myth that the EPA’s endangerment finding can somehow stop dangerous warming if the climate bill dies

  1. Tim R. says:

    Why not give us a thorough attempt to analyze the power of the EPA to use the Clean Air Act to stop U.S. emissions. Instead what you have given us is analysis built on two sad assumptions: that market-based solutions are necessarily always superior to command and control regulations and that Obama still isn’t serious about addressing climate change. Well, if those assumptions are right, then I guess the conclusion above is right. Too bad.

    I think the point some of are trying to make though, is the reason Obama is not seriously using the CAA, is because ACESA gives him the cover to sit back and let others take the heat. Too bad.

    What if Obama had already declared a National Ambient Air Quality Standard for GHGs and declared the whole U.S. out of compliance. The many States that care about climate change could move forward with federal authority to regulate all sources of GHGs within their states. By 2012, states that refused to act would have their programs taken away and the big, bad feds would have moved in to do the regulating for them. No state wants this, so just like other CAA regs they hate, dirty states regulate like the EPA tells them to.

    [JR: Try, “by 2020, states that refused….” Remember, the states get to try to meet the standards first. If the Feds took their program away, that I’m afraid would end up in the courts for quite some time. I’d also note that your plan is political suicide, if W-M fails. Now political suicide might be make some small amount of sense if, again, this strategy of yours would solve the problem, but since there is little reason to believe it would for the reasons I’ve outlined, it is not a realistic option.]

    This is not only about coal. CAA regulations could affect every source of GHGs, including petroleum, cement, steel, large buildings, and agricultural operations. There is the possibility of regulating existing sources through § 111(d). Other CAA sections could be used to deal with aircraft, non-road engines, diesel engines and locomotives. Black carbon, a pollutant this site pointed out was the second most important climate pollutant, and only studied in ACESA, could be regulated. A full-court press, like the kind science tells us is necessary IS POLITICALLY POSSIBLE NOW. Not that there wouldn’t be a political price. And it is clear that doing the right thing to stop hell and high water is too high a price for the Administration at this time. Too bad.

    And just imagine what Europe and China would say if Obama was using the CAA like he could. We would truly be the world leader on climate instead of trying to defend ACES as adequate. Too bad.

    [JR: Europe and China would say the United States was not serious as a country, was not capable of passing legislative targets, and was not a country they could enter into negotiations with.]

    Again, I want ACES to pass if it is not further watered down, but full use of the CAA would be far better. Obama doesn’t want to do that and you are giving him a pass. Too bad.

    [JR: Again, full use of the CAA is not far better. It is much worse.]

  2. Jeff Huggins says:


    People, we can’t count on one thing OR another: We need all the things, currently proposed, and we need to dramatically improve them once we get rolling, and we’ll need much more.

    I was a chemical engineer from Berkeley, and did very well there, and went into the oil industry with Chevron Research. At the time, I also had offers from Exxon and Shell. So, I take the science (and what scientists are saying to us today) very seriously, and I know how much CO2 comes from a gallon of gas — and it’s A LOT.

    We need to GET OFF THE STUFF.

    And, I went to Harvard to get an MBA and have been a consultant with McKinsey and so forth. Let’s put it this way: BIG businesses (e.g., ExxonMobil) don’t change easily.

    This stuff about “Solution A will be fine” or “Solution B will do it”, is silly. We need Solution A plus Solution B plus Solutions C, D, E, F, and so forth. And more.

    And as Bill McKibben has written (if I read correctly), it’s going to be necessary to do MUCH more to get key things enacted and actually done.

    Why someone has not called a complete Boycott (yes, with a Capital B) of some of the leading offending companies by now is beyond me.

    Be Well, but don’t be silent,


  3. Steve Bloom says:

    Joe, I disagree with much of that, although not with your conclusion:

    1. Podesta is certainly right that the endangerment finding alone would make a cap-and-trade program hard to implement, but his point doesn’t apply to straight-up regulation. As I’ve pointed out before, Obama won’t really lose this authority due to Waxman-Markey since the parallel ocean acidification finding under the Clean Water Act will hand him the same basic authority. I predict that Obama will have to use it to compensate for the weaknesses of W-M.

    2. Yes, a subsequent president could trivially stop or endlessly delay whatever actions Obama was able to start with the EPA, but if we learned nothing else from the Bush regime it should be that another such administration would be able to largely eviscerate W-M. Even so, I suspect we’ll see e.g. a bilateral agreement with China that commits the U.S. to undertake certain actions per the endangerment finding(s). I’m no expert, but that sort of thing may be a good way to tie the hands of future admistrations.

    [JR: If Obama is a 2-term president — (and if he ain’t, this cause is probably lost anyway) — I think it would be very hard for the next president to eviscerate W-M.]

    3. The ability to get the treaty regime going is sufficient cause all by itself to support W-M.

    4. You missed a big one: Without passage of some sort of bill, the administration won’t be able to claim the mandate it needs for yet stronger climate actions. We’re going to need those, and soon. Further legislation seems unlikely in the extreme, as does Senate approval of the Copenhagen deal unless Obama finesses it using the sort of tool I described in point 2.

    [JR: I very much agree with your point 4. Yes, a failure here would give opponents the upper hand, and allow the media, the cognoscenti, and large parts of the public to continue largely ignoring the subject. It is worth noting that I believe about half of the states that in place a renewable energy standard have subsequently strengthened them. And, of course, we have subsequently strengthened the Clean Air Act (many times) and the Montréal protocol on the ozone depleting substances.]

  4. “Dangerous myth” sounds a bit like denial.

    One can fully accept the science of AGW and also be completely deluded about how bad it is, what must be done. We are all kidding ourselves.

    Denial is not just for the carbon rubes and science shills. The more we wait, the more severe the resolution, either by our will or natural unfolding. The known science of AGW is there, still unexamined.

    Cheers !

  5. Mike#22 says:

    Mercury, acid rain, ozone, cadmium, arsenic, PM-whatevers–these are all things which come out of coal plants (well, ozone is after the fact)(right now, and every minute today, tomorrow…) and kill 20,000 to 40,000 people every year. Surface waters in much of the US have so much mercury in them, the fish are not safe to eat. etc.

    This is just one example of how weak the EPA’s ability to regulate pollutants is, when the industry they are attempting to regulate has more influence.

    The EPA knows coal plants are killing tens of thousands of Americans every year, and can’t stop it.

    There are many more examples.

    The Clean Air Act has done vast good. The cost to benefit ratio is in the hundreds. No complaints about the EPA staffers. Past appointees on the other hand…

    But we need laws–not regulation.

  6. Steve H says:


    Thanks for the post. It was really needed.

  7. One more:
    If the Senate doesn’t pass ACES, then all the nations negotiating at Copenhagen will take that as a signal that the Senate won’t ratify a strong treaty – killing the attempt to negotiate a strong treaty.

  8. Joe P. says:

    This answers some of my questions, but I still think Obama or someone should be making noises like they will go down this route, as a negotiating tactic.

  9. Sam says:

    Mike#22’s comment is spot on. I won’t pretend to know all there is to know about the ACES bill or the EPA regulation option. But, from what I do know it’s not like ACES just strips EPA’s authority to regulate. It dictates clear new authority to cut carbon pollution.

    If ACES passes, it sets a guaranteed limt. EPA regulation could be strong, may not be, will likely take a long time, may not be politically or legally feasible, may not apply to older power plants, may be undone from one administration to the next, does little to promote (and could undermine) a strong international treaty, etc. The list of uncertainties is so daunting, I’m confused why people are so eager to promote EPA regulation over the sure thing of legislation.

    If it’s a choice — and I confess I’m not sure why it has to be a choice — but if our elected officials say it must be a choice in order to cut the deals we need to pass a bill, to me it’s an easy one — legislation over regulation any day of the week.

  10. desmoinesdem says:

    I find this post difficult to square with comments from people like Collin Peterson that they voted for Waxman-Markey because it would be devastating to let EPA regulate carbon-dioxide emissions.

    Also, I don’t consider legislation a “sure thing” for reducing emissions in the long term. We know for sure that W-M would give polluting industries huge subsidies in the short-term. As we get closer to the date when significant emissions reduction targets kick in, I consider it highly likely that a future Congress will water down the targets, citing a desire not to hurt the economy or increase people’s utility bills or whatever excuse they will use.

    [JR: Weakening the targets after the fact is a virtually zero-probability outcome. Remember, that would require 60 votes in the Senate, majority in House, and a GOP President. And in 10 years, people will be starting to get desperate for deeper reductions. Finally, if you consider Petersen a climate policy expert, go with his “analysis.”]

  11. Mike#22 says:

    desmoinesdem said: “We know for sure that W-M would give polluting industries huge subsidies in the short-term. ”

    Can you point out where that is in the bill?

    Because I haven’t seen that.

    The economic impacts of an EPA mandated CO2 reduction could look very much like the “energy impoverished, job destroying” bogeyman the delayers are waving around re W-M. And therefore, backlash at the polls, new EPA Administrator, and it is back to lopping off the top of every likely looking mountain.

    We need to exploit the economic benefits of efficiency and renewables, and we need to place the initial investment cost on the polluters who right now are using our atmosphere as a disposal site for their waste products (hot dirty gases) by charging them. EPA CANNOT DO THAT.

    W-M takes the bulk of new revenue generated by the sale of allocations and invests that in efficiency and renewables. EPA CANNOT DO THAT.

    W-M directs every electric utility in the nation to develop an electric vehicles charging infrastructure plan so that we have a viable transition away from oil. EPA CANNOT DO THAT.

    W-M will deliver a whole new era of appliance efficiency, and connect these appliances to a smart grid, laying the groundwork for an efficient and renewably powered grid. EPA CANNOT DO THAT.

    W-M addresses in detail transitioning our building stock to higher efficiency–and funds much of it through sale of allocations. EPA CANNOT DO THAT.

    W-M takes all the lessons learned about how to make a stable CO2 market, and keep the traders honest, and makes that the law. For CO2 pricing to have the most positive outcome, we need a healthy market sending consistent signals so that emitters can do the necessary planning to stop emitting. EPA CANNOT DO THAT.

  12. desmoinesdem said: I find this post difficult to square with comments from people like Collin Peterson that they voted for Waxman-Markey because it would be devastating to let EPA regulate carbon-dioxide emissions.

    I don’t see any difficulty at all. EPA regulation would probably be so expensive that it would 1) make it economically impossible to reduce emissions enough to control global warming and 2) cause economic devastation with the regulations that it does implement.

    By contrast, cap and trade lets industries use the lowest cost methods of reducing emissions, so it allows more reductions without economic devastation.

  13. Jim Beacon says:

    The EPA does not operate in a vacuum. Anything it does can be challenged to review and revocation by Congress if the EPA does something that enough people in Congress disapprove of. Think the EPA ordering more reductions than Waxman-Markey does would not result in an immediate Congressional review/repeal of their actions? Of course it would.

    But even if Congress let the EPA ruling stand, there’s the court system. Any company could (and would) file a suit and challenge the legality of the EPA ruling in court. They already done that many times in the past. That would mean an endless round of appeals all the way up to the Supreme Court before (if) the company loses the suit and has to comply. So, for maybe 5 or 10 years they could delay having to comply with the EPA regulation — and there’s a good chance they might win and have the court throw the EPA regulation out completely.

    But let’s say that on some planet (not this one) that neither Congress intervenes or any company challenges the EPA ruling in court:

    We still face the practical aspects of industry actually being able to physically comply with the EPA order. What are they going to do, shut down half of the coal plants overnight? That would instantly reduce the total amount of electricity available in the U.S. by 25% to 30%. That would immediately cause massive, recurring power outages in every city across the country and guarantee a perpetual state of brownout. Is anyone naive enough to think the people of this country would put up with that for more than a week or two before they lynched everyone in the EPA and told the power companies to fire those coal plants back up?

    Get real, people. As a practical matter, CO2 reduction on the scale we need it to be done cannot be “ordered” by any single government agency. It must be done through a vote of the duly elected representatives of the people of this country or not at all. That’s the real world we live in.

  14. Wes Rolley says:

    Those of us who find major problems with Waxman-Markes (ACES) are most concerned with the limitations that Congress will place on it. If you go through the bill carefully, you find that special interest organizations and congressional campaign supporters have filled the bill with loopholes.

    Let me given a couple of examples related to agriculture. The first is the fact that major point sources of ghg’s are not even required to make any effort to measure how much they produce. Imagine every large corporate hog factory or feedlot and all of the rotting manure that they produce. This relates to methane, a ghg that is many times more powerful than CO2 even if far less persistent in the atmosphere. It seems to me that taking action here would have been a major factor in slowing the process until stronger CO2 measures were in place and effective.

    The Environmental Working Group has found major loopholes in the offset as they relate to AG and this gives another pass.

    This has nothing to do with whether cap and trade will work. It has all to do with whether Congress has the political will to make the entire process work.

    Add to this the fact that two powerful Democrats, Sen. Byrd of WV, the man who perfected the filibuster, and Congressman Nick Rahall will do all they can to make sure that coal continues to be mined, and burned and to hell with the consequences as long as Massey Energy stock continues to go up. Rahall (WV – 3rd CD), as Chair of the House Committee on Natural Resources, could do a lot to fix the problem but he fears the power of Massey Energy to unseat him if he did.

    I fear that the time has come for citizen non-violent protest, such as James Hansen did at Coal River Mountain. Congress has one chance to get this right and so far, the best grade I could give them is a D-.

    Wes Rolley
    CoChair, EcoAction Committee, Green Party US.

  15. hapa says:

    wes rolley: “fear” is the wrong word. the freedoms of speech and association are a critical power check built into our country.

  16. cougar_w says:

    I guess my problem with W-M/ACES comes down to my general pessimism about legislated solutions to systemic problems. I’ll readily admit that as a throw-away playing card on the international stage it has a lot of value. That is, for any other player that doesn’t understand how our democratic process works. For anyone in the trenches (or who understands Congress) it’s DOA as far as being anything useful.

    I’ll be less alarmed by all this hand-waving when I detect the O administration and Congress talking about backing up the vaporous suppositions of W-M with a “Manhattan Project” style approach to getting us moving off fossil fuels within the span of this presidency. A silo’ed off-budget project where the politicians cannot f*ck it up (much) and where people on a mission with the right tools and money and 3 years free and clear can put their shoulders under the problem and push as hard as humanly possible. Which I can tell you is damned hard. Three years with enough money and no messing around might turn an important corner.

    Might also signal — at the end, when all is said and done — that we can’t turn this ship around in the time remaining. Either way, for good or ill we’d have our options laid out before us. This “cap it and all is well” is dangerous fantasy without a solid plan to grapple with our ongoing epic fail.


  17. Pat Richards says:

    The type of citizen action that is called for is a MASSIVE, multi-millon man MARCH ON WASHINGTON starting September 8 when the Senate begins floor debate on Waxman-Markey. People need to camp out on the D.C. mall (and all around the rest of the country if they can’t make it to D.C.) and INSIST that Waxman-Markey be strengthened and passed quickly.

    This sort of thing has worked in the past you know. More often than it has failed.

    So, OK, where’s the website(s) organizing the September Citizen Climate Change March on Washington anyway? Or are we just going to try to talk this thing to death?