Unless and until Congress crafts legislation setting out a sound national policy to address our energy future as well as global climate change, it should not bar the Environmental Protection Agency from using its existing authority to require large new sources of greenhouse gases to install the best available control technology at the time they are constructed.
The source of EPA's authority - indeed in the view of the Supreme Court, its mandate to deal with greenhouse gases - is the Clean Air Act of 1970.
Congress made significant mid-course corrections to it in 1977 and then again in 1990. However, as it became more and more apparent the act needs to be amended to coherently address changed circumstances and new issues, including greenhouse gases/global climate change, Congress has taken no action to update the legislation.
And, over the past 40 years we have had a succession of energy-crises and petroleum price-spikes, but Congress has failed to provide a coherent energy blue-print. Now global climate change and energy are inextricably linked.
Following its mandate from the Supreme Court, EPA made the required finding that greenhouse gases can endanger human health and the environment and contribute to the climate change problem and established, in conjunction with the Department of Transportation, standards for automobiles to reduce greenhouse gases and improve fuel economy.
The next set of EPA regulations would require major new and modified sources of greenhouse gases, such as power plants and refineries, to install best available control technology, beginning in 2011. These regulations are now the target of those who prefer a no action, head-in-the-sand approach to global climate change.
When the Clean Air Act was passed in 1970, existing electric-generating power plants were essentially grandfathered from having to install state of the art controls. Many are still operating, and as some major utility executives agree, need to be phased out. The ideal time to design and install environmental controls is when a new plant is constructed. There is a clear need to limit the emission of greenhouse gases to the atmosphere from power plants - here and around the world - and we should not build another generation of power plants without such controls.
Unless we start to price carbon into the calculus for making investment decisions, we will not foster the development of new energy-efficient technologies in this country.
There are good reasons why the heads of corporations with a global reach like General Electric and DuPont support action to deal with global climate change. They know the U.S. risks losing the technology edge to China and some countries in the European Community that see the opportunities and are seizing the moment.
There are three primary reasons why the United States should develop an aggressive energy/climate change policy: (1) it is in our national economic interest to become more energy-efficient; (2) it is in our national security interest as our military prepares to deal with the implications of global climate change and availability of critical natural resources like petroleum, water and rare minerals; and (3) as the major historic contributor of greenhouse gases we have a moral duty to others who now - or in the future will - share our occupancy of this planet to reduce our per-capita carbon emissions.
The natural forces human activity has fostered or contributed to will not hold in abeyance while Congress continues to kick the energy/climate change policy can down the road. The ways of Mother Nature and the laws of physics, chemistry and biology will proceed unabated.
Congress, it is time for you to step up to the plate. Where you have a better idea than what EPA is trying to do with its imperfect authority, replace it with a more comprehensive and carefully tailored approach to address our energy future and global climate change. Simply blocking EPA without putting a better plan in place is not an acceptable option. Our children and grandchildren deserve better.
A. James Barnes is Professor of Public and Environmental Affairs and Professor of Law at Indiana University. In 1970 he was involved in the creation of the Environmental Protection Agency and subsequently returned to the agency in the mid-1980s. Readers may write him at SPEA, Indiana University, 1315 East Tenth Street, Bloomington, IN 47405.
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