EPA Refuses to Label CO2 a Pollutant

Attempts by environmental groups to circumvent congressional authority and achieve their goals through the back door were set back on August 28, when the Environmental Protection Agency (EPA) turned down requests to regulate emissions of carbon dioxide and other greenhouse gases. The environmentalists hoped that EPA would use the Clean Air Act, which allows it to regulate substances if they are could be reasonably expected to harm human welfare. The Act lists “climate” as an area of human welfare.
Jeffrey R. Holmstead, the assistant administrator who oversees air programs, said that the act “does give us authority to do research on climate change, not to issue regulation … Where there is a major public policy issue, Congress needs to decide.” The general counsel, Robert E. Fabricant, issued a memorandum that said, “E.P.A. cannot assert jurisdiction to regulate in this area.”
The EPA had been asked to declare the life-sustaining gas detrimental to human welfare by a coalition of environmental groups and two north-eastern states that filed petitions under the Act. Fabricant based his reasoning on the 2000 Supreme Court decision, Food and Drug Administration v. Brown & Williamson Tobacco, which said the F.D.A. could not try to regulate tobacco as a “drug” and cigarettes as a “device.”
Holmstead clarified, “The Supreme Court said where there is a major public policy decision to be made, an agency can't just go out and use a broadly worded statute to deal with that.” Fabricant added, “It is clear that an administrative agency properly awaits congressional direction on a fundamental policy issue such as global climate change, instead of searching for an existing statute that was not designed or enacted to deal with that issue.” (New York Times, Aug. 28)
From Vol. VII, No. 18 of the Cooler Heads Project