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The Clean Air Act: A Suitable Tool for Addressing the Challenges of Climate Change

April 2011

Citation: 41 ELR 10301

Issue: 4

Author: Robert B. McKinstry Jr.

The political opponents of regulation addressing climate change claim that the Clean Air Act (CAA) is a “fossil” neither intended nor suitable for addressing the challenges of climate change. Legal and historical analysis suggests otherwise. Both the text of the Act, as interpreted by the U.S. Supreme Court in Massachusetts v. U.S. Environmental Protection Agency (EPA), and the legislative history indicate a congressional intent to regulate emissions of pollutants that pose a risk of causing changes in worldwide climate. Far from being a fossil, the statutory “bones” provide a broad array of regulatory and other tools that can be flexibly applied. These include not only technology-based emissions standards and enforcement tools, but programs for comprehensive planning by states to use the full range of incentives and disincentives available under their police and spending powers. These tools also include tradable permits, emissions fees and auctions, other incentive-based emissions reductions approaches, and air quality-based limits.

Robert B. McKinstry Jr. is a partner in the Philadelphia office of Ballard Spahr, LLP, where he heads the firm’s Climate Change and Sustainability Initiative. He was counsel of record for the group of amici climate scientists supporting the petitioners in Massachusetts v. EPA.

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