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(If) Things Fall Apart: Searching for Optimal Regulatory Solutions to Combating Climate Change Under Title I of the Existing CAA if Congressional Action Fails

September 2010

Citation: 40 ELR 10864

Issue: 9

Author: Timothy J. Mullins and M. Rhead Enion

Editors' Summary:

If legislative prospects for a national climate change bill fail, EPA retains a number of options under the existing CAA to create a cap-and-trade program that could, in many ways, mimic a congressionally created regime. Under Title I in particular, EPA could turn to the NAAQS program (§§107-110) or the new source performance standards (NSPS) and existing source regulation (§111(b) and (d)). Various legal constraints, however, may be imposed upon these different statutory hooks. Examining the interplay between these regulations suggests that EPA may need to move in an incremental fashion, given the uncertain statutory authority and legislative process.

Timothy J. Mullins is an associate at Arnold & Porter LLP, admitted only in Maryland, practicing law in the District of Columbia pending approval of application for admission to the D.C. Bar and under the supervision of lawyers of the firm who are members in good standing of the D.C. Bar. M. Rhead Enion is the Emmett/Frankel Fellow in Environmental Law and Policy at UCLA School of Law.

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