Global Warming

Arnold W. Reitze Jr.

[Editors' Note: This Article will be included as a chapter in a new treatise on air pollution control, compliance, and enforcement authored by Prof. Reitze and published by the Environmental Law Institute. The 20-chapter treatise will include up-to-date discussions of the history of the air pollution control program in the United States; air pollution control and trends; prevention of significant deterioration and visibility protection; air quality planning; nonattainment; fuels and fuel additives; mobile sources; electric power industry regulation; control of hazardous air pollution; preconstruction permits; operating permits; control of air pollution from motor vehicles by state governments; stratospheric ozone; global warming; reporting requirements for nonroutine hazardous pollutant releases; self-monitoring and self-reporting of routine air pollution releases; inspections; civil enforcement; criminal penalties; and private remedies.

The treatise will be published in the spring of 2001. Orders are now being accepted. Additional information may be obtained from www.eli.org, by calling (202) 939-3844 or (800) 433-5120, or by e-mailing orders@eli.org.]

The author is the J.B. and Maurice C. Shapiro Professor of Environmental Law at George Washington University and special consulting counsel to LeBoeuf, Lamb, Greene & MacRae, Washington, D.C. This Article will be included as a chapter in a new treatise on air pollution control, compliance and enforcement authored by Prof. Reitze and published by the Environmental Law Institute. The comprehensive 20-chapter treatise will include up-to-date discussions of the history of the air pollution control program in the United States; air pollution control and trends; prevention of significant deterioration and visibility protection; air quality planning; nonattainment; fuels and fuel additives; mobile sources; electric power industry regulation; control of hazardous air pollution; preconstruction permits; operating permits; control of air pollution from motor vehicles by state governments; stratospheric ozone; global warming; reporting requirements for nonroutine hazardous pollutant releases; self-monitoring and self-reporting of routine air pollution releases; inspections; civil enforcement; criminal penalties; and private remedies.

[31 ELR 10253]

Efficient combustion largely prevents the formation of many criteria pollutants. Carbon monoxide (CO) emissions usually are created by combustion in an oxygen deficient environment.¹ Hydrocarbon emissions often result from incomplete combustion caused by such factors as low fuel temperature, too rich or too lean air-fuel ratios during and after combustion, and poor distribution of fuel within the combustion chamber.² Nitrogen dioxide (NO₂) is primarily created from the oxidation of nitrogen in the air during combustion at high temperatures.³ Ozone and other photochemical oxidants are created during atmospheric reactions involving nitrogen oxides (NO_x) and hydrocarbons (HCs).⁴ Thus, conventional air pollution control efforts usually aim to create ideal combustion conditions so that the combustion byproducts are carbon dioxide (CO₂) and water vapor. This is expressed as:

HC + O₂ + N₂ —> CO₂ + H₂O + N₂ + heat ⁵

However, even ideal combustion that produces only CO₂ and water vapor can threaten the global ecosystem if large quantities of CO₂ emissions and other global warming gases released from anthropogenic sources disrupt the natural global atmospheric balance that has evolved over time spans associated with geologic processes.⁶

In 1896, Svante Arrhenius, a Swedish scientist, discovered that the increasing concentration of CO₂ could increase the average temperature of our planet.⁷ Around 1940, G.S. Callender was the first person to calculate global warming due to the increasing of CO₂ from fuel combustion. He said that burning fossil fuels could raise the CO₂ level in the atmosphere, and a doubling of CO₂ could cause the earth's temperature to increase by 10 degrees Fahrenheit (F).⁸ His view generally seems to have been correct, but the greenhouse effect was given little attention until 1957 when in Mauna Kea, Hawaii, far from industrial pollution sources, a steady rise in atmospheric CO₂ concentrations began to be measured.⁹ In the 1970s scientists began to realize that a number of gases could affect global temperatures.¹⁰ They were called greenhouse gases (GHGs) and are considered to include natural-occurring water vapor, CO₂, methane (CH[4]), nitrous oxide (N₂O), and ozone (O₃).¹¹ Human activities [31 ELR 10254] that produce CO₂ primarily, but also activities that produce CH[4], and N₂O are the principal reason for the increase in atmospheric concentrations of the gases.¹² Precursor gases—CO, NO_x, and nonmethane volatile organic compounds (NMVOCs)—also contribute indirectly to global warming.¹³ Aerosols, which are small particles or liquid droplets that often are produced by sulfur dioxide (SO₂) emissions, can affect the absorptive characteristics of the atmosphere.¹⁴ Several classes of halocarbons containing florine, chlorine, and bromine are also GHGs.¹⁵ These are known as chlorofluorocarbons (CFCs), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), halons (which are halocarbon compounds containing bromine), and sulfur hexafluoride (SF[6]).¹⁶

Global average temperatures today appear to be about 0.5 degrees Celsius (C) (about 1 degree F) warmer than the late 19th century.¹⁷ Atmospheric concentrations of CO₂ currently are rising at about 0.5% per year.¹⁸ Computer models predict a faster warming in the future with a temperature increase of 1.9 to 2.9 degrees C (about 3.4 to 5.2 degrees F) by the year 2100.¹⁹ Between 1987 and 1997 were the nine warmest years on record²⁰; 1998 was even warmer, with 1999 setting yet another record.

Predictions concerning global warming usually are based on the use of atmospheric-ocean models, but the use of such models is a relatively new science. The basic physics of ocean circulation developed by Count Rumford in 1800 is continuously improved and incorporated into atmospheric-ocean models. Global climate models were created in the 1960s and began to be used to study climate change in the 1970s.²¹ The early climate models were limited in their ability to detect climate change unless large changes in the input data occurred. The most highly developed computer models are called general circulation models²² and are capable of predicting climate effects from increasing CO₂ concentrations more accurately than prior models because their ability to factor the capacity of the oceans to act as a heat sink has improved.²³ But modeling the biosphere is still an evolving science. The atmospheric science components are better understood than the role of the oceans. Knowledge concerning the oceans' ability to absorb, release, and redistribute heat is still evolving. Thus, the ability to accurately predict temperature change is limited by both the quality of computer models and the data used in them.²⁴

Because global warming will affect the dynamics of ocean currents, some areas of the earth, such as northern Europe, are predicted to become cooler.²⁵ Present projections have considerable uncertainty, but estimates are that global warming will result in a sea-level rise of about 20 centimeters (cm) in global mean sea level by 2030, and 65 cm by the end of the next century.²⁶ The Intergovernmental Panel on Climate Change (IPCC) estimates a range of 17 cm to 99 cm in global mean sea level rise over the period 1990 to 2100.²⁷ The impacts of a rise in the sea level include an increase in the intensity and frequency of storms.²⁸ A 20 inch sea-level rise (50.8 cm) would double the global population subject to the risk of storm surges to over 90 million without adjustment for population growth.²⁹ A one meter rise would inundate much of Bangladesh as well as coastal areas world-wide. A two meter rise would put the capital cities of Shanghai, China and Lagos, Nigeria, below water and flood 20% of the populated area of Egypt. It also would flood the Republic of Maldives in the Indian Ocean and the Pacific atoll island nations of Takelau, Tuvalu, and the Marshall Islands.³⁰

Compared with pre-industrial levels, CO₂ concentration in the atmosphere has risen from about 270 to 280 parts per million by volume (ppmv) to over 360 ppmv in 1999, N₂O has risen from 270 ppmv to over 310 ppmv, and CH[4] concentration has increased from 700 parts per billion by volume (ppbv) to over 1,700 ppbv.³¹ In 1995 total carbon released from human activities was 6.46 billion tons; 73% came from developed countries; 22% came from the United States where per capita carbon emissions exceed five tons per year.³² It is expected that much of the future growth in global CO₂ emissions will occur in the developing countries [31 ELR 10255] as they undergo economic development. By 2035, developing countries are projected to account for more than one-half of the anthropogenic CO₂ emissions.³³ China, presently the second largest source of CO₂ emissions from fossil fuel burning and cement manufacturing, is projected to displace the United States as the largest emitter by 2015.³⁴ The anthropogenic sources, which appear to be disrupting the earth's carbon cycle, account for about 3% to 4% of the total CO₂ emissions from human and natural sources.³⁵

In the United States, CO₂ emissions account for 82% of its GHG emissions in carbon equivalents; in 1997 CO₂ emissions were 1,487.9 million metric tons (MMT).³⁶ In the United States forests act as CO₂ sinks because improved forest management practices and the regeneration of previously cleared forest lands result in the sequestering of carbon, thus preventing about 11% of the CO₂ that is produced from being released to the atmosphere.³⁷ CH[4] releases account for 179.6 million metric tons of carbon equivalent (MMTCE) while N₂O accounts for 109.0 MMTCE.³⁸ HFCs, PFCs, and SF[6] combined account for 37.1 MMTCE.³⁹ In 1977, GHG emissions in the United States from the transportation sector, measured in MMTCE, were: CO₂—446.5, CH[4]—1.4, N₂O—17.5, and HFCs—4.5.⁴⁰ Transportation activities accounted for almost 26% of the total U.S. emissions from 1990 to 1997. Since overall emissions were increasing during this period, this percentage of total emissions, although constant, represents a 12% increase in emissions.⁴¹

Carbon emissions per capita in 1987 ranged from 0.03 tons in Zaire to 2.12 tons in Japan to 5.03 tons in the United States. The carbon emissions per dollar of gross national product (GNP) ranged from 183 grams in Zaire to 156 grams in Japan to 276 grams in the United States. However, industrializing nations had much higher emissions per dollar of GNP. China was the worst at 2,024 grams, followed by Egypt at 801 grams, India at 655 grams, Saudi Arabia at 565 grams, and the former Soviet Union at 436 grams.⁴² If the developing countries overcome their economic problems and expand their GNP, their potential for carbon emissions is tremendous.⁴³

The Carbon Cycle

The basis for life on earth is photosynthesis—the method by which the sun's energy is captured to nurture plant life. It can be summarized as: CO₂ + 2H₂O + light —> CH₂O + H₂O + O₂ + stored energy. CH₂O (formaldehyde) is the simplest organic compound; many types of organic compounds can be formed.

There is considerable variation in how organisms use carbon. Most organisms use organic molecules for the energy required for growth and are called heterotrophs. Autotrophs obtain carbon from CO₂. Phototrophic organisms use light energy to reduce CO₂. Chemolithotrophic organisms can utilize the energy stored in inorganic chemical bonds such as in nitrates and sulfates.⁴⁴

Respiration uses oxygen from air or water to unlock the energy that has been stored by the photosynthesis process. For this reason the concentration of CO₂ in the atmosphere varies during the day. The average atmospheric concentration of CO₂ is 320 parts per million (ppm).⁴⁵ When the sun rises and photosynthesis begins, the CO₂ levels drop about 10 to 15 ppm by noon. At sunset photosynthesis ends but respiration continues, and CO₂ levels near the ground can exceed 400 ppm.⁴⁶

The rate of CO₂ fixation varies from as much as two kilograms of carbon (as CO₂) per square meter of land in a tropical rain forest to 1% of that amount in the arctic tundra or in nearly barren desert areas.⁴⁷ Because most of the CO₂ conversion occurs on a relatively small portion of the earth, tropical rain forests are very important in this cycle. When leaves and other plant life die they are oxidized back to CO₂ by complex processes. The forests of the world contain about two-thirds of the amount of CO₂ present in the atmosphere.⁴⁸ About 15 billion tons of carbon in the form of CO₂ are turned into wood each year.⁴⁹ However, estimated world reserves of coal and oil contain about 50 times more carbon than is found in living organisms.⁵⁰

Phytoplankton in the ocean consumes about as much CO₂ as land vegetation. Most of the carbon cycle in the sea is self-contained; the oxygen released by sea plants is used by sea animals, but wind and wave action allows some exchange of CO₂ and O₂ between the sea and the atmosphere. The CO₂ in the surface layers of the ocean is in close equilibrium with the CO₂ in the atmosphere.⁵¹ The ocean is also a sink for CO₂ which is converted to the HCs in water organisms. When these organisms die, they sink to the deep layers or bottom, and their carbon is converted to carbonate and bicarbonate ions.⁵²

Only a few tenths of 1% of the carbon near the surface of the earth is involved in the rapid circulation of carbon in the life cycle. Plants on land have lives measured in years while phytoplankton have lives measured in weeks. But most of the world's carbon is in inorganic deposits mostly of carbonates and in organic deposits of oil shale, coal, and petroleum. Their formation took millions of years.⁵³ Carbon held in the deep oceans involves a circulation time of about 1,000 years for carbon to be returned to the carbon cycle. Thus we have a small high-speed carbon cycle within the planet's much [31 ELR 10256] larger and much slower moving system.⁵⁴ The two systems are interrelated, for each year about 100 billion tons of atmospheric CO₂ are dissolved in the sea and replaced by the release of an equal amount of CO₂ from the ocean. But humans have disrupted this system by combusting fossil fuels during the past two centuries, resulting in the release of carbon stored over millions of years of geological time. At the same time, the ongoing destruction of the world's forests releases additional carbon.⁵⁵ How to limit the disruption of the earth's carbon cycle is one of the great challenges facing the world community.⁵⁶

Greenhouse Gases

The relative ability of a molecule of a GHG to affect climate compared with CO₂ is called its global warming potential (GWP). GWP is the ratio of global warming, or radiative forcing (both direct and indirect), from one unit mass of a GHG to that of one unit mass of CO₂ over the time required for the gas to be stored in the oceans, the soil, or the earth's biomass (plants and animals).⁵⁷ The environmental impact of a GHG is a function of its GWP times the number of molecules released.

The GWP of a greenhouse gas is determined by comparing one unit mass of CO₂ to another GHG over a period of time to obtain a global warming ratio. This requires a determination of the direct and indirect radiative forcing capabilities of a substance over time. The time period of 100 years was recommended by the United Nations' IPCC and is the time period used by the United States to evaluate GWP.⁵⁸ Thus, CO₂ is arbitrarily assigned a GWP of 1; CH[4] is then calculated as 21, and N₂O is 310.⁵⁹ HFCs have a GWP range of 140 to 11,700, CFC[4] has a GWP of 6,500 (other CFCs are higher), and SF[6] has a GWP of 23,900.⁶⁰ There has been no formal determination of a GWP for CO, NO_x, NMVOCs, and SO₂ because there is no accepted method to estimate their impact as GHGs.⁶¹ Other sources of GWP information prior to the IPCC standardizing ratios often used slightly different GWP values.⁶² The use of GWP allows the various GHGs to be reported in terms of MMTCE.⁶³

CO₂ has a relatively low instantaneous radiative force, but it is released in large quantities and has a long residency time—perhaps 100 years. There is, however, uncertainty about the rate of sink uptake of CO₂ in the oceans as well as in forests, soils, and plants. Nevertheless, CO₂ from fossil fuel combustion and deforestation is considered to contribute over one-half the GWP from anthropogenic GHGs,⁶⁴ and therefore is considered the most significant global warming gas.

CH[4] (marsh gas), the second most important global warming gas, has a GWP of 21.⁶⁵ It has 56 times more instantaneous radiative force than CO₂, but it has a residency time in the atmosphere of only about 12 years and is emitted in much lower quantities.⁶⁶ It is released from a variety of sources, including livestock, rice cultivation, entric fermentation, landfill emissions, natural gas extraction and distribution, coal mining, sewage treatment, and biomass combustion.⁶⁷ In the United States, CO₂ emissions have a carbon equivalency of 8.28 times that of the total CH[4] emissions.⁶⁸ However, in India the carbon equivalency of CH[4] emissions is double that of its CO₂ emissions.⁶⁹ If natural gas is used as a substitute for coal, there are benefits in lower CO₂ emissions, but the benefits are negated if about 6% of this gas escapes between production and combustion. Since leakage rates are usually at or above this level, the substitution of natural gas for coal could increase global warming.⁷⁰

The third most important global warming gas is N₂O released from agricultural fertilizers, land clearing, and biomass combustion. A relatively small amount is emitted from motor vehicles, and due to the use of catalytic converters to reduce NO_x, the amount of N₂O emitted from vehicles has increased.⁷¹ N₂O has a GWP 310 times that of CO₂ and an atmospheric residency time of about 120 years,⁷² but in the United States it is released in relatively low quantities.⁷³ [31 ELR 10257] Since 1990, N₂O releases from human activity in the United States have increased nearly 14% with the most significant increase coming from mobile sources.⁷⁴

The release of these GHGs have primary and secondary effects. The primary effect is global warming. These temperature changes will not be evenly distributed; the maximum warming will occur in the high northern latitudes in late autumn and winter.⁷⁵ Temperature increases could result in changes in the sea level, wind and ocean circulation patterns, and weather.⁷⁶ Secondary effects include reduced irrigation water⁷⁷ and hydroelectric-generated power; crop damage from insects, disease, and drought; increases in air pollution; increases in soil salinity; increased demand for electricity for air conditioning; rangeland deterioration; damage to forests; loss of wetlands; loss of species and wildlife habitat; loss of fisheries; and increases in human diseases spread by insects.⁷⁸

The Legal Response

Since the late 1980s, the United States has been involved in efforts to control emissions of GHGs. This has led to various international agreements and domestic laws at the national level to reduce GHGs. States also have developed plans to reduce these gases.⁷⁹ Nevertheless, no program in the United States has been created that imposes binding requirements or enforceable mandates to reduce GHGs. While the federal government in general, and the U.S. Environmental Protection Agency (EPA) in specific, are not directly regulating GHGs, the issue has been raised as to whether the EPA has the authority to regulate GHGs.

Are GHGs Air Pollutants?

The Clean Air Act (CAA) grants EPA the authority to regulate a substance that is (1) an air pollutant, and (2) a danger to public health or welfare or the environment under one of the statute's regulatory provisions.⁸⁰ Thus, the starting point for an analysis is the CAA's definition of "air pollutant" found in § 302(g).⁸¹ The statute says:

The term "air pollutant" means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term "air pollutant" is used.

EPA has indicated that this definition covers some GHGs. Under this definition, a substance can be an air pollutant even if it has no harmful effect on public health or welfare, or the natural environment. A substance can be an air pollutant even if it is naturally present in the ambient air. "For example, SO₂ is emitted from geothermal sources; volatile organic compounds (precursors to ozone) are emitted by vegetation, and particulate matter and NO_x are formed from natural sources through natural processes, such as naturally occurring forest fires."⁸² The EPA general counsel's position is that CO₂ is included within the definition of air pollutant.⁸³ If CO₂ is a pollutant under the CAA, then other GHGs presumably also would be pollutants. They also enter, or have the potential to enter, the ambient air, which is defined as "that portion of the atmosphere, external to buildings, to which the general public has access."⁸⁴

The § 302(g) definition of pollutant is broad⁸⁵ and ambiguous. Nevertheless, in the process of developing the 1990 CAA Amendments, Congress considered regulating CO₂ emissions, as well as other GHGs, and then rejected the proposed legislation. The original Senate bill, S. 1630, had no GHG provisions except a motor vehicle tailpipe standard limiting CO₂ emissions.⁸⁶ When S. 1630 emerged from committee, it contained a Title VII entitled the "Stratospheric Ozone and Climate Protection Act." The bill included language that stratospheric ozone depletion and global climate change were occurring due to emissions of CFCs, HCFCs, CH[4], and CO₂ that imperil human health and the environment and, therefore, should be controlled.⁸⁷ Title VII of the bill was based on another bill, S. 491, entitled the "Stratospheric Ozone and Climate Protection Act of 1989," which had been introduced by Sens. John H. Chafee (R-R.I.) and Max Baucus (D-Mont.).⁸⁸ S. 491 was based on a similar bill, S. 571, that had been introduced by Senator Chafee in [31 ELR 10258] the previous Congress.⁸⁹ The legislation included as a national goal the reduction, to the maximum extent possible, of gases produced by human activities that were likely to affect adversely the global climate, and it provided for an orderly shift to alternative technologies.⁹⁰ This bill would have allowed the Administration to regulate manufactured substances that contributed to climate modification.⁹¹ Title VII, as reported, contained a modified version of the CO₂ tailpipe standard that was in S. 1630 as introduced. The Senate adopted Title VII of S. 1630 almost as reported from committee, but the tailpipe emission standard provision was removed.⁹²

In the House of Representatives in 1989, Rep. John D. Dingell (D-Mich.) introduced H.R. 3030, which was destined to be the primary source of the CAA Amendments of 1990.⁹³ The bill as introduced had no provisions on either stratospheric ozone depletion or global warming.⁹⁴ Subsequently, a stratospheric ozone title was introduced on the House floor as an amendment by Representative Dingell.⁹⁵ The Dingell Amendment, which was closer to the 1990 CAA Amendments than the Senate version, was limited to stratospheric ozone depletion and did not deal with global warming or CO₂. It did not include GHGs among the substances that were to be regulated.⁹⁶ In the process of enacting Title VI of the 1990 CAA Amendments language addressing stratospheric ozone was incorporated from both the House and Senate versions.⁹⁷ However, all references to GHGs, including CO₂, were removed except for a reference in § 602(e). This section says "the Administrator shall publish the global warming potential of each listed [ozone-depleting] substance. The preceding sentence shall not be construed to be the basis of any additional regulation under this chapter."⁹⁸ Title VI, consequently, did not include any provision to regulate global warming gases.

This is strong evidence the Congress did not intend to regulate GHGs when it considered ozone-depleting substances and GHGs in the same sections of the pending legislation. A basic rule of statutory construction is that silence by Congress after considering a proposal cannot be the basis for claiming Congress authorization.⁹⁹ "The Court of Appeals will not presume a delegation of power based solely on the fact that there is not an express withholding of such power."¹⁰⁰ "In the normal case Congress is assumed to be conscious of what it has done, especially when it chooses between two available terms that might have been included in the provision in question."¹⁰¹

EPA's Response

On April 10, 1998, EPA's General Counsel, Jonathan Z. Cannon, released a memorandum to EPA's Administrator concerning the Agency's authority to regulate four pollutants, including CO₂, emitted from electric power plants. He concluded that CO₂ was a pollutant under the CAA's definition in § 302(g). However, the regulation of a pollutant under the various programs in the CAA is linked to a subsequent determination by the Administrator that the pollutant has actual or potential harmful effects on public health, public welfare, or the environment. Mr. Cannon concluded that CO₂ is an air pollutant within the scope of the EPA's authority to regulate, but this pollutant has not yet been determined to meet the criteria for regulation under one or more provisions of the CAA.

On October 6, 1999, EPA's General Counsel, Gary S. Guzy, in testimony before Congress, stated that actions to regulate CO₂ under the CAA or other domestic law would not be an effort to implement the Kyoto Protocol.¹⁰² He embraced Mr. Cannon's earlier position that CO₂ met the definition of air pollutant under the CAA, but to be regulated a finding was required by the Administrator that the pollutant met the prerequisites imposed by the CAA. He noted that regulation as a criteria pollutant could be based on impacts on welfare that results from a pollutant in the ambient air that comes from numerous or diverse mobile or stationary sources. He added that since 1970 an effect on climate is a factor to be considered in determining whether welfare is endangered. Mr. Guzy went on to say that Congress' decision in 1990 not to adopt additional provisions to regulate GHGs did not limit EPA's preexisting power to regulate any air pollutant that meets the statutory criteria for regulation. He reiterated one of the central conclusions of Mr. Cannon's memorandum—the "EPA has not made any of the Act's threshold findings that would lead to regulation of CO₂ emissions from … any source." Furthermore, he said "CO₂ is in the class of compounds that could be subject to several of the [CAA's] regulatory approaches."

On December 1, 1999, Mr. Guzy reiterated his position in a letter to Rep. David McIntosh (R-Ind.), in which he stated EPA could regulate CO₂ under the CAA. He also declared that the language in §§ 103(g) and 602(e), where CO₂ is mentioned, "does not limit in any way the regulatory authorityprovided by other provisions of the [CAA]."¹⁰³ Though [31 ELR 10259] EPA's position is that CO₂ may be regulated under the CAA if the Agency makes the necessary additional findings, EPA to date it has not made the necessary findings.

On October 20, 1999, 20 petitioners filed a Petition for Rule Making and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions From New Motor Vehicles Under Section 202 of the Clean Air Act. The leading petitioner, the International Center for Technology Assessment, was joined by environmentalists and "soft-energy" profit and nonprofit organizations. The petitioners' text runs about 24 pages, but the legal arguments comprise only a few pages. There is not much analysis in the petition, but it claims that the Cannon Memorandum of April 10, 1998, is "a legal determination that CO₂ meets the definition [of air pollutant] contained in § 302(g)." It also asserts that "Congress explicitly recognized CO₂ emissions as an air pollutant under § 103(g) of the [CAA]" by citing, again, to the Cannon Memorandum.¹⁰⁴ The crux of the petitioners' argument is that GHGs are pollutants under CAA § 302(g) that endanger public health or welfare and therefore must be regulated under CAA § 202(a)(1). The remainder of the petition alleges the harm caused by GHGs in an effort to show that the requirements of § 202(a)(1) have been met so that a finding of endangerment to public health or welfare must be made.

The position that the CAA allows CO₂ to be regulated depends on a narrow reading of the CAA. It is not supported by a holistic evaluation of the entire governmental effort to deal with GHGs.

EPA's Authority to Regulate Global Warming Gases Under CAA Subchapters I and VI

The State Implementation Plan (SIP)-Based Program

If a substance satisfying the definition of "air pollutant" enters the ambient air, a second step of analysis is required to determine if a regulatory program exists under the CAA that is applicable to a specified air pollutant. The CAA's most traditional program involves criteria air pollutants that are controlled pursuant to a SIP in which a state develops and implements an air pollution control program for each air quality control region (AQCR) within the state.¹⁰⁵ For this SIP-based program to commence, EPA must designate a substance as a criteria pollutant after finding that emissions "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare" and "the presence of which in the ambient results from numerous diverse mobile or stationary sources."¹⁰⁶ Primary national ambient air quality standards (NAAQS) must be promulgated to protect the public health with a margin of safety.¹⁰⁷

Control of criteria pollutants is based on the use of a SIP to control local emissions in order to reach the ambient levels of pollution set out in the applicable NAAQS.¹⁰⁸ CAA § 126¹⁰⁹ provides EPA with additional authority to prevent major sources from releasing air pollution that may significantly contribute to levels of air pollution in excess of a NAAQS in another state,¹¹⁰ however, the exercise of interstate control authority is rare under the CAA.¹¹¹ The SIP process is primarily local and is predicated on the SIP being able to achieve significant reductions of the targeted pollutant.¹¹² CO₂, however, cannot be controlled effectively by the SIP process because ambient tropospheric levels are essentially the same everywhere in the world.¹¹³ The United States contributes only about 22% of the world's anthropogenic GHG releases.¹¹⁴

If EPA adopted a criteria pollutant approach to control CO₂, it would have to set atmospheric numerical values that were either above or below present values. If CO₂ NAAQS values were below present CO₂ atmospheric concentration, the entire country would have a nonattainment status with no realistic expectation that any measure taken as part of a SIP would lead to attainment of the standard. New and modified major stationary sources would have to meet the lowest achievable emissions rate (LAER)¹¹⁵ although no technology exists that meets the LAER definition.¹¹⁶

If a NAAQS value above the present CO₂ atmospheric concentration was selected, the entire nation would be in attainment, and significant effort to reduce CO₂ would not be needed. Compliance with the prevention of significant deterioration (PSD) program would be the major applicable requirement.¹¹⁷ This would require the application of best available control technology (BACT) to new or modified major emitting facilities, which requires the consideration of economic impacts and costs.¹¹⁸

The criteria pollutant approach also provides for secondary NAAQS that are to be set at a level "to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air."¹¹⁹ Controlling such effects in a SIP would be subject to the same limitations as discussed for controlling CO₂ and other GHGs in order to meet a primary standard.

Because EPA's authority to regulate global warming gases using the criteria pollutant regulatory approach is ambiguous, [31 ELR 10260] at best, it is extremely unlikely that Congress gave the Agency the power to enact a potentially costly but futile control mechanism.¹²⁰ Because there is no cost-effective, commercially available control for stationary source CO₂ emissions, now or in the foreseeable future, neither new source performance standards (NSPS)¹²¹ or new source review (NSR) requirements¹²² can legally be applied to CO₂ sources. Any effort by the EPA to reduce CO₂ or other GHG pollutants through controls on mobile sources also would certainly fail for similar reasons. If the CAA's statutory language is read with a focus on the goal it is intended to achieve, Congress cannot have intended to regulate global warming using a program completely unsuited to this purpose.¹²³

Hazardous Air Pollutants (HAPs)

In § 112, the CAA regulates HAPs that have adverse health or environmental effects.¹²⁴ CAA § 112(b)(1) lists 189 hazardous pollutants for potential regulation; CO₂ is not on the list.¹²⁵ Substances that are regulated under subchapter VI because of their impact on stratospheric ozone cannot be regulated under § 112 solely based on their adverse environmental effects.¹²⁶ EPA can add to the § 112 list

pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, ….¹²⁷

Unlike the listed substances, CO₂ is not toxic in small doses. However, none of the listed toxic pollutants are as ubiquitous in the environment as is CO₂. Despite its universal presence, there are no known adverse health effects due to CO₂ exposure at the concentration levels found in the atmosphere. Contrary to EPA's position, § 112(b)(2) requires the health effects to come from "inhalation or other route of exposure" and then goes on to list effects such as carcinogenicity.¹²⁸ These health effects are all the result of direct exposure. EPA, however, disputes the need to limit § 112 pollutants to those that are directly harmful and takes the position that pollutants which can be added under § 112(b) "are not limited to those that are 'highly toxic and endanger health or the environment through direct exposure.'"¹²⁹ Furthermore, it would be beyond reason to assume Congress overlooked listing a pollutant emitted in the United States in the amount of 1.488 billion metric tons in 1997.¹³⁰

Any health effects from atmospheric CO₂ concentrations are indirect effects, such as diseases spread by insect populations that increase due to higher temperatures. This differs from the direct harm caused by the listed substances regulated pursuant to § 112. Furthermore, when § 112 discusses adverse environmental effects as a basis for regulating a substance, the language "whether through ambient concentrations, bioaccumulation, deposition, or otherwise …" indicates aconcern with the direct harmful effects of a substance. HAPs are those that pose serious health risks.¹³¹ The HAPs program, to date, primarily regulates major stationary sources which are defined as sources of emissions of 10 tons per year of a HAP or 25 tons per year of a combination of HAPs.¹³² While EPA is given some flexibility in making decisions on the "frontiers of scientific knowledge," case law requires a rational basis for a decision to designate a pollutant as hazardous.¹³³ There is not a rational basis for EPA to designate CO₂ as hazardous. If CO₂ is considered a HAP virtually every single-family home with an oil or gas furnace will be a major source under § 112.¹³⁴

International Transport

CAA § 115 allows the Administrator to force a state to control air pollution if it causes or contributes to air pollution that endangers public health or welfare in a foreign country that has given the United States reciprocal rights concerning control of air pollution.¹³⁵ EPA resisted using § 115 to protect Canada, the nation most affected by emissions from the United States, by interpreting the reciprocity requirements [31 ELR 10261] to prevent Canada from receiving protection.¹³⁶ If EPA does not support giving Canada protection from air pollutants crossing the U.S. border, it is difficult to understand how EPA could argue that § 115 may be used to control worldwide tropospheric concentrations that are subject only to nonbinding international controls. Until the United States becomes a Party to the Kyoto Protocol and the Protocol enters into effect, § 115 cannot be invoked because its reciprocity requirements are not met.

Stratospheric Ozone Protection

Although the CAA, in subchapter VI, provides a program to control any substance that "causes or contributes significantly to harmful effects on the stratospheric ozone layer,"¹³⁷ this program was not intended to be used to control GHGs. This subchapter gives the Administrator the responsibility to publish the global warming potential of substances listed in § 602.¹³⁸ However, § 603(e) effects the scope of this responsibility, stating, "the preceding sentence shall not be construed to be the basis of any additional regulation under this chapter." In addition to this limitation, the legislative history of subchapter VI makes it clear that it was not intended to be used to control GHGs.¹³⁹

Other Provisions in the 1990 CAA Amendments

Even though the 1990 CAA Amendments added a few minor references to either CO₂ or global climate change, the Act does not evidence any congressional intent to regulate CO₂ emissions.¹⁴⁰ The Conference Committee changed CAA § 103(g), one of the three sections of the Act to use the term "carbon dioxide," by adding the term "nonregulatory."¹⁴¹ Section 103(g) gives the Administrator the authority to carry out research and demonstration programs for air pollution prevention. This includes working on nonregulatory strategies to control CO₂ from stationary sources.¹⁴² To make its position clear, § 103(g) contains the words "nonregulatory strategies" five times.¹⁴³ This point is further clarified by the statement that "nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements."¹⁴⁴ Moreover, Public Law 101-549, which contains the CAA Amendments of 1990 but also contains provisions that are separate from the CAA has one provision, § 821, entitled "Information Gathering on Greenhouse Gases Contributing to Global Climate Change."¹⁴⁵ It requires EPA to issue regulations to have CO₂ monitored from "all affected sources subject to title V" of the CAA and have them reported to the Agency.¹⁴⁶

Mobile Source Control

The legislative history of the 1990 CAA Amendments demonstrates that GHGs are not pollutants for the purposes of subchapter II of the CAA, but even if they are pollutants, § 202(a)(1) requirements also must be met before EPA may regulate them. This section grants the Administrator the power to regulate "any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger health or welfare."¹⁴⁷ For a pollutant to be regulated by § 202, therefore, requires that it endanger health or welfare, with "welfare" defined in CAA § 302(h) as follows¹⁴⁸

All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other air pollutants.

The above definition evolved over time, but most of the definition was added in the CAA Amendments of 1970.¹⁴⁹ The last clause, "whether caused by transformation, conversion, or combination with other air pollutants," was added in 1990 to § 302(h)¹⁵⁰ by § 109 of the CAA Amendments.¹⁵¹ EPA, however, focuses on the word "climate" when attempting to exercise regulatory authority over GHGs because of the effect on welfare. Nevertheless, a review of the legislative history of the 1970 CAA Amendments reveals no concern about global warming¹⁵²; only the possibility of global warming was discussed at the time.¹⁵³ Even a few [31 ELR 10262] years later there still seemed to be no concern about global warming. For example, a Senate report on automobile emission standards published in October 1973 had no discussion of global warming issues.¹⁵⁴

Section 202(l)(1) calls for a study of toxic air pollutants to be completed by May 15, 1992, for unregulated air pollutants associated with motor vehicles and motor vehicle fuels.¹⁵⁵ Section 202(l)(2) provides for EPA to promulgate standards which "reflect the greatest degree of emission reduction achievable through the application of technology which will be available, taking into consideration the standards established under subsection (a) of this section, the availability and costs of the technology, and noise, energy, and safety factors, and lead time."¹⁵⁶

In response, EPA has published a list of HAPs emitted from on-road vehicles, and the list does not contain GHGs.¹⁵⁷ The Agency has developed an integrated urban air toxics strategy that addresses health risks from both stationary and mobile sources¹⁵⁸ as required by CAA § 112(b)(3) and (f) and § 202(l).¹⁵⁹ On September 14, 1998, the Agency released its draft Integrated Urban Air Toxics Strategy and formally promulgated it on July 19, 1999.¹⁶⁰ This program is ongoing and capable of dealing with any public health problem created by mobile sources that Congress intended to be addressed.

Control of GHG Emissions From Motor Vehicles

Automobiles have been subject to federal exhaust emission standards for HCs and CO since Model Year (MY) 1968 and for NO_x since MY 1973.¹⁶¹ The 1970 CAA Amendments created the essentials of the program in use today.¹⁶² The major thrust of the 1970 program was to reduce the exhaust emissions of HC, CO, and NO_x through a program provided in § 202(b).¹⁶³ That program, aimed at the control of the specified pollutants, continues today in § 202 with light-duty trucks and light-duty vehicles subject to emission standards specified in § 202(g) and (h).¹⁶⁴ From 1970 to 1990, the numerical values for automobile emissions became more stringent, but there was little change in the program to control mobile sources.

Heavy-duty vehicles (HDVs) are subject to § 202(a)(3)(A) which regulates emissions of HCs, CO, NO_x, and particulate matter.¹⁶⁵ The standards applicable to heavy-duty trucks may be revised by the Administrator, but revisions are limited to changes to standards promulgated under the CAA prior to the CAA Amendments of 1990.¹⁶⁶ Since GHGs, including CO₂, were not regulated prior to 1990 the language of § 202 precludes their regulation from HDVs. Standards for HDVs under § 202 have to "reflect the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the [MY] to which such standards apply, giving appropriate consideration to cost, energy, and safety factors associated with the application of such technology."¹⁶⁷

The extent to which presently unregulated pollutants from motor vehicles, including GHGs, may be regulated under CAA § 202 is unknown. EPA's practice for the past 30 years has been to implement the pollutant-specific provisions of subchapter II, but it has never regulated any other mobile source pollutant. Moreover, to utilize § 202(a) the Administrator must determine that one or more GHGs are pollutants that "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." Any regulation must not take effect until "after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period."¹⁶⁸ Thus it appears that for a GHG to be regulated there must be findings that (1) it is a pollutant, (2) it endangers public health or welfare, (3) there is an appropriate control technology, (4) the technology is cost effective, and (5) appropriate time is provided to apply the technology.

Section 202(b)(1)(C) limits the revision of an existing standard, and the numerical values specified in the statute cannot be modified before MY 2004.¹⁶⁹ This could preclude any new regulatory requirements involving trade offs that increase emissions of any regulated pollutants above existing requirements. Furthermore, § 202(a)(4)(A) prohibits the use of emission controls or designs that "cause or contribute to an unreasonable risk to the public health, welfare, or safety in its operation or function."¹⁷⁰ The term "unreasonable risk" is defined in § 202(a)(4)(B).¹⁷¹ The Administrator also has the authority to promulgate regulations to control [31 ELR 10263] mobile source air toxics.¹⁷² The CAA requires a study to be completed showing a "need for, a feasibility of," controlling such emissions.¹⁷³ EPA's approach has been to deal with air toxics from mobile sources as part of its National Urban Air Toxics Program,¹⁷⁴ but this effort has not resulted in the identification of GHGs that need to be regulated. Moreover, any regulation of mobile source air toxics requires that technology to control such pollutants be available after considering costs, noise, energy, safety, and lead time.¹⁷⁵

The Legislative History of CAA § 202(a)

The legislative history does not support the use of § 202(a) as authority for expanding the reach of the motor vehicle emission control program. CAA § 202(a)(1) & (2) was added by the CAA Amendments of 1970 and has been changed only in minor ways. The clause "which in his judgment causes or contributes to, or is likely to cause or contribute to, air pollution which endangers the public health or welfare;" found in the 1970 Amendments¹⁷⁶ was changed to "which in his judgment cause or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare." This change occurred in 1977¹⁷⁷ and was not changed in the 1990 CAA Amendments. The rest of § 202(a)(1) & (2) remains as enacted in 1970.

The origin of this clause appears to be § 202(a)(1) of the 1970 S. 4358.¹⁷⁸ This bill would have given the Secretary of the Department of Health, Education, and Welfare the obligation to "by regulation prescribe … standards applicable to the emissions of all known substances of any kind or description from … commercial vehicles and new noncommercial vehicles … which in his judgment cause or contribute to, or are likely to cause or to contribute to, air pollution which endangers the health or welfare of any persons."¹⁷⁹ This language continued in the bill as reported.¹⁸⁰ Section 202(b), however, provided specific emission reduction requirements for pollutants regulated prior to 1970, including a 90% reduction from MY 1970 vehicles by MY 1975.¹⁸¹ The Senate Report to accompany the National Air Quality Standards Act of 1970 explains that subsection (b) was to regulate CO, HCs, and NO_x.¹⁸² The Senate Report stated that § 202(a) would be expected to be used to regulate particulate matter because such standards could not be established under § 202(b) due to the lack of measurement techniques.¹⁸³ These measurement methods were expected to be developed by 1972, at which time particulate standards were to be established by the Secretary under § 202(a).¹⁸⁴ Accordingly, the legislative history indicates that the intent of § 202(a) was to prevent the delay of emission controls by allowing HC, CO, and NO_x to be controlled immediately, with particulates to be regulated using § 202(a) as soon as a measurement technology was developed.

The International Legal Response to Global Warming

The attempt to control global warming has involved primarily international efforts. "No single country can resolve the problem of global climate change."¹⁸⁵ The first U.S. law to deal specifically with global warming was Public Law 95-367 of September 17, 1978, which created a national climate program.¹⁸⁶ On December 22, 1987, the Global Climate Protection Act expanded the 1978 law.¹⁸⁷ It provided for the Secretary of State to coordinate U.S. negotiations concerning global climate change and for EPA to develop and propose to Congress a coordinated national policy on global climate change.¹⁸⁸ In 1988, the United Nations and the World Meteorological Organization appointed an international group of scientists to investigate global warming as the IPCC.¹⁸⁹ The IPCC advises the International Negotiating Committee (INC), which was established by the United Nations General Assembly on December 21, 1990, to coordinate negotiations for an international treaty on climate change.

On December 22, 1989, the United Nations General Assembly called for a global summit on environmental and development issues.¹⁹⁰ This was to be the second such meeting; the first was the Stockholm Conference on the Human Environment held in 1972. Among the issues of concern to the nations of the world was the threat of global warming. By January 1991, 13 developed nations had pledged to reduce or stabilize their CO₂ emissions by 2005.¹⁹¹ In the United States, however, the Bush Administration consistently opposed efforts to limit CO₂ emissions.¹⁹² The Administration's National Energy Strategy¹⁹³ projected a continuous [31 ELR 10264] increase in U.S. energy consumption¹⁹⁴ and a 25% increase in CO₂ emissions by 2015.¹⁹⁵ Its program for the control of GHGs in 1990 was largely based on controlling CFCs already subject to production reductions under both the Montreal Protocol and the CAA.¹⁹⁶

Two statutes enacted in 1990 provided the foundation for the U.S. position on global research. On November 16, 1990, the day after the CAA Amendments were enacted, Congress passed the Global Change Research Act to establish a Committee on Earth and Environmental Sciences to coordinate a 10-year research program and to establish a Global Change Research Information Office to disseminate information.¹⁹⁷ On November 22, 1990, a Global Climate Change program was created as Title XXIV of the Food and Agriculture Act of 1990 to research global climate agricultural issues and to provide a liaison to foreign countries on such issues.¹⁹⁸ Neither of these laws provide regulatory authority to any federal entity. In 1991, the Global Environment Facility (GEF) was created as a collaborative effort between the World Bank and the United Nations to finance efforts of developing countries to protect the global environment, including climate change reduction efforts.¹⁹⁹ As of 1997, the United States had contributed $ 190 million, making it the second largest contributor.²⁰⁰ In addition, the United States pledged an additional $ 430 million for fiscal years 1999 through 2002.²⁰¹

Rio

From June 3 to 14, 1992, the United Nations Conference on Environment and Development (UNCED) was held in Rio de Janeiro, Brazil, as the resumed fifth session of the INC. In Rio, 178 nations were represented and 110 heads of state attended.²⁰² Most developed countries pushed an environmental agenda, but developing countries were more interested in their own economic development. The Rio meeting produced Agenda 21, an 800-page document divided into 4 sections and covering 40 subjects that was to be a blueprint for environmental and development policy for the coming decades.²⁰³ In addition, there were agreements prepared prior to the UNCED with only the signatures of the nations left to be affixed. These included two controversial conventions, one dealing with climate change and the other with biodiversity.²⁰⁴ There also were two other environmental agreements, one addressing forest principles and another on desertification.

The UNCED led to the creation of a new Commission on Sustainable Development (CSD) under the Economic and Social Council of the United Nations. Its mission is to evaluate the implementation of the Agenda 21 programs, and it is the first United Nations body that has a specific mandate to monitor the performance of individual countries.²⁰⁵ The UNCED also produced the Framework Convention on Climate Change (FCCC), the first international agreement to address global warming.²⁰⁶ At the insistence of the Bush Administration, the convention avoided deadlines or specific commitments, but the convention's long-term objective was to limit global warming gas concentrations.²⁰⁷ It called on developed countries, including the United States, to lower emissions of GHGs that were not controlled by the Montreal Protocol to 1990 levels by the year 2000 on a nonbinding basis.²⁰⁸ The FCCC, it should be noted, does not classify GHGs as "pollutants" but defines them as "those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infra red radiation."²⁰⁹

On October 7, 1992, the U.S. Senate unanimously approved the FCCC. As part of the hearings before the Senate Committee on Foreign Relations, the Administration made clear that the FCCC did not create legally binding targets or [31 ELR 10265] timetables for limiting greenhouse gas emissions.²¹⁰ The FCCC was ratified by the Senate with the understanding that the Administration would not agree to amendments or protocols to the treaty that create a binding emissions reduction commitment without subsequent Senate approval.²¹¹ President Bush signed the treaty on October 13, 1992, and urged the other 153 countries that signed it in Rio to ratify it. Only Mauritius, the Marshall Islands, and the Seychelles had ratified as of October 1992,²¹² but 1 year later 161 countries had signed the treaty and 31 had ratified it.²¹³ On March 21, 1994, the Climate Treaty entered into force after the required 50 countries ratified the convention.²¹⁴

Evolution of a New International Climate Change Treaty

In 1992, the Energy Policy Act (EP Act), with 30 titles on energy regulation and policy, was enacted as omnibus domestic legislation.²¹⁵ Its § 1605(b) requires the U.S. Department of Energy (DOE) to establish guidelines for the voluntary reporting of GHG releases and their annual reduction.²¹⁶ Section 1605 began as the Cooper-Synar Bill, aimed at regulating new large stationary sources of CO₂, to require permits and offsets under a program to be established by the EPA.²¹⁷ A watered-down version became EP Act § 1605 after all provisions of a binding or regulatory nature had been removed in order to provide only for voluntary reporting of GHG emissions.²¹⁸ Thus the EP Act considered and rejected mandatory restrictions on GHGs.

Among other provisions in the EP Act are requirements for the Secretary of Energy to assess the feasibility of stabilizing and/or reducing GHGs²¹⁹ and to assess the extent to which the United States is complying with international agreements on reducing such gases.²²⁰ However, the global climate change provision found in Title XVI does not authorize mandatory reduction of GHGs.²²¹ Titles III, IV, V, and VI are the alternative fuels and alternative vehicle provisions which support the research, design, and development of fuels and vehicles that use less petroleum and thereby produce fewer carbon emissions.²²²

More than 39 states took part in the first year of the 1992 EP Act's voluntary reporting of GHG emissions.²²³ Most of the reporting involved electric power supply and covered nearly 600 projects to reduce emissions or prevent the release of GHGs.²²⁴ EPA worked with states to conduct inventories of GHG emissions. By December 1995, 28 states had completed inventories, 14 other states were working to produce an inventory, and a few states—Minnesota, Oregon, Pennsylvania, and Washington—were attempting to develop mitigation strategies.²²⁵ In addition, some states were moving to require electric utilities to consider environmental impacts when planning electric power investment.²²⁶ However, the United States did not meet its goal of returning major GHGs to the 1990 CO₂ emission levels of 4,972 billion metric tons; in 1997 these emissions were 5.503 billion metric tons.²²⁷

Signatory countries to the FCCC were required to submit estimates and sinks for the base year of 1990. Prior to 1994, the estimates included CFCs.²²⁸ In September 1994, EPA dropped the reporting of gases covered under the Montreal Protocol because their use was being phased out.²²⁹ With this change, CO₂ accounted for 85% of U.S. GHG emissions, CH[4] accounted for 11%, and N₂O emissions accounted for 2%.²³⁰

In October 1993, President Clinton and Vice President Gore released their plan to return GHGs to 1990 levels by the year 2000.²³¹ It included measures to reduce all GHGs and to protect forests, "which are greenhouse gas 'sinks' that store carbon removed from the atmosphere."²³² The Administration committed itself to $ 1.9 billion in new and redirected funding between 1994 and 2000²³³ and included almost 50 actions that involved all sectors of the economy.²³⁴ [31 ELR 10266] The program did not seek new legislation. This action plan was to be the basis for the U.S. Action Plan that had to be submitted to the Conference of the Parties (COP) to the FCCC. The FCCC was to enter into force when 50 nations ratify it, but this had not occurred at the time the Action Plan was released.²³⁵ About one-half of the Parties to the FCCC had not submitted national action plans by the end of 1994.²³⁶ However, the President and Vice President's Action Plan was criticized for failing to stabilize greenhouse gas emissions to 1990 levels.²³⁷

In the United States, changes in the control of the Congress to a Republican majority after the November 1994 elections affected the summit of the treaty partners held in Berlin from March 28 to April 7, 1995. Sen. Jesse Helms (R-N.C.), chairman of the Senate Foreign Relations Committee, in a letter to the Secretary of State said that the U.S. position "raises some serious questions."²³⁸ Sen. Frank Murkowski (R-Alaska), chairman of the Senate Committee on Energy and Natural Resources, said in a letter to the Secretary of Energy he feared the U.S. position would "result in specific targets and timetables for greenhouse gas reductions that may be unachievable, detrimental to our national interest and/or premature given our current scientific understanding of the role of anthropogenic greenhouse gas emissions in global climate change."²³⁹

In February 1995, the United Nations' INC met in New York. The INC had conducted the talks that led to the FCCC. Its last task was to complete preparations for turning its work over to a new body, the COP to the FCCC, which was to meet for the first time in Berlin in March 1995. A significant and controversial issue discussed in Berlin was the adequacy of commitments by industrialized nations to meet the convention's target of reducing CO₂ emissions to 1990 levels by the year 2000.²⁴⁰ The challenge was to demonstrate that there was a consensus among researchers on the need to reduce emissions of global warming gases that would justify the actions required by the FCCC.²⁴¹ IPCC planned to issue a Second Assessment Report at the end of 1995 that would provide a basis for defining the treaty term "dangerous anthropogenic interference with the climate system."²⁴²

From March 28 to April 7, 1995, the first COP to the FCCC took place in Berlin. The delegates concluded that commitments by developed countries to reduce their GHG emissions to 1990 levels by the year 2000 were inadequate.²⁴³ The COP created an Ad Hoc Group on the Berlin Mandate (AGBM) that was to develop policies and measures to be implemented after the year 2000. The AGBM met in August and November 1995, and met eight more times before the Kyoto Protocol meeting in November 1997.²⁴⁴ In the United States the COP was followed by efforts to (1) strengthen the FCCC; (2) increase U.S. measures to reduce GHGs; and (3) mobilize state and local efforts to limit such emissions.²⁴⁵

The IPCC, an international group of scientists brought together at the request of the United Nations, issued a report on November 30, 1995.²⁴⁶ The report stated that global warming was occurring and human factors are responsible.²⁴⁷ On May 16, 1996, the Energy Information Administration of the DOE released a report projecting an increase in GHGs for the Organization of Economic Cooperation and Development (OECD) countries of 31% above 1990 levels over the next 20 years and a worldwide increase of 54%.²⁴⁸ Thus, the FCCC's goal of reducing the emissions of GHGs to 1990 levels by 2015 was not going to occur.²⁴⁹

The United Nations issued another report on July 8, 1996, as the signatories to the FCCC began their second COP (COP-2) in Geneva,²⁵⁰ stating that many developed countries were not going to reduce GHG emissions to 1990 levels by the year 2000.²⁵¹ An important development at the conference was the U.S. initiative indicating it was, for the first time, willing to have legally binding targets to cap CO₂ emissions in the United States.²⁵² On July 18, 1996, the conference took note of the Geneva Ministerial Declaration and agreed that it should be annexed to the report of the COP. The "ministerial declaration" called for binding objectives for greenhouse gases to be established within specific time [31 ELR 10267] frames.²⁵³ The delegates of 134 countries agreed to continue discussions at the third COP (COP-3) meeting to be held in Kyoto, Japan, in December 1997.²⁵⁴ Only two of the European Union (EU) states—the United Kingdom and Germany—were expected to meet the existing GHG reduction commitment under the 1992 FCCC.²⁵⁵

On September 6, 1996, in Linz, Austria, the European Environment Agency (EEA) reported that the EU must accelerate its greenhouse gas reductions if it was to meet FCCC goals. The EEA reported that industrialized countries might need to reduce emissions between 30% to 55% by 2010 from 1990 levels. However, GHG emissions in OECD countries, which are the most industrialized nations, were increasing. EU countries were reluctant to take actions unilaterally, and the less industrialized EU members—Greece, Ireland, Portugal, and Spain—wanted the other EU members to reduce more GHGs than the poorer EU countries.²⁵⁶

In July 1997, the Senate sent the Byrd-Hazel Resolution²⁵⁷ to the Clinton Administration which said the Senate would not ratify any protocol that did not require substantive Third World participation or that would damage the U.S. economy.²⁵⁸ Since a treaty cannot legally bind the United States until it is ratified by a two-thirds vote of the Senate,²⁵⁹ the resolution indicated significant displeasure in the Senate with the Administration's position. In the fall of 1997, a steady procession of studies concerning global warming were released.²⁶⁰ On October 22, 1997, President Clinton announced the U.S. Policy on Climate Change which proposed a binding target of reducing GHG emissions to 1990 levels by 2008 to 2012 with further reductions in the five-year period that follows.²⁶¹ In October 1997, at the eighth session of the AGBM a draft text was released for a new international climate change treaty.²⁶²

Kyoto

COP-3 was held in Kyoto, Japan, which produced the Kyoto Protocol to the United Nations FCCC on December 11, 1997.²⁶³ The parties under the FCCC are divided into Annex I and non-Annex I countries. Annex I includes the OECD nations as of 1992 (which are the developed nations), the nations of eastern and central Europe, and the european states of the former Soviet Union.²⁶⁴ The non-Annex I nations are the developing nations.²⁶⁵ The Kyoto Protocol imposes its requirements on 38 nations and the countries comprising the European Community, which are essentially the same as those listed in Annex I of the FCCC.²⁶⁶ At Kyoto the Parties included in Annex I agreed to reduce their anthropogenic CO₂ emissions by at least 5% below 1990 levels by 2008 to 2012.²⁶⁷ The United States agreed to a 7% reduction, the EU agreed to an 8% reduction,²⁶⁸ and Japan agreed to a 6% reduction of greenhouse gases.²⁶⁹ These reductions are to be implemented using domestic regulations of the ratifying nations.²⁷⁰

The developed nations that have committed to reducing emissions will self-monitor their progress toward the targeted reductions. Each nation will determine how to measure its compliance and will report its emissions to international authorities.²⁷¹ Each country may offset its emissions by expanding its forests or by using market mechanisms described below. The essential thrust of the Kyoto Protocol is to have developed nations reduce their use of fossil fuels, but there is no mechanism to assure compliance by other nations.²⁷² Many of the details concerning compliance as well as policy issues were left for future determination.²⁷³

[31 ELR 10268]

An important aspect of the Kyoto Protocol is its provisions for using market-based mechanisms to reduce the developed nations' costs of meeting the required emissions reductions. These "flexibility" mechanisms, in effect, transfer greenhouse emission reduction obligations between nations to encourage reductions where costs are lowest.²⁷⁴ There are three primary flexibility mechanisms: (1) joint implementation which allows a developed country to sponsor a project in another developed country in return for part, or all, of the emission reduction credit that results from the project; (2) the clean development mechanism which allows a developed country to finance emissions reductions in a developing country that is a Party to the Kyoto Protocol in exchange for credit for the reduced emissions; and (3) the international emissions trading system that allows nations to buy or sell allowances to emit GHGs. The details necessary to implement these market mechanisms were left for future clarification.²⁷⁵

In the United States joint implementation is based on rules published in 1994 as part of the U.S. Climate Action Plan. The U.S. Initiative on Joint Implementation (USIJI) Program is directed by an interagency working group chaired by the U.S. Department of State. Projects are evaluated by the USIJI evaluation panel, which is co-chaired by EPA and DOE and includes representatives from the Agency for International Development and the U.S. Departments of Agriculture, Commerce, the Interior, State, and Treasury.²⁷⁶

At the fourth COP (COP-4) held in Buenos Aires in November 1998, the United States signed the Kyoto Protocol.²⁷⁷ However, because the Kyoto Protocol was strongly opposed by a number of senators, the Clinton Administration did not bring the Kyoto Protocol to the Senate for ratification.²⁷⁸ As of March 1999, 83 countries plus the 15 member states of the EU had signed the Kyoto Protocol. However, as of March 16, 1999, only four countries had ratified it—Fuji, Panama, Trinidad and Tobago, and Tuvalu.²⁷⁹

On October 20, 1999, President Clinton signed the "Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act, 2000." The law contains "Knollenberg" funding restrictions that bars EPA from proposing or issuing rules, regulations, decrees, or orders to implement the Kyoto Protocol.²⁸⁰ On June 8, 1999, President Clinton issued Executive Order No. 13123 that calls on the federal government to reduce greenhouse gas emissions by 30% from 1990 levels by 2010.²⁸¹ The effort to control GHGs at the international level and the opposition of the U.S. Senate to unilateral control efforts make it difficult, if not impossible, for EPA to attempt to control such gases without creating serious conflict with the Congress.

The fifth COP (COP-5) to the FCCC took place on October 25 to November 5, 1999, in Bonn, Germany. The COP-5 meeting resolved some 20 technical issues concerning implementation, but did not address the major unresolved political questions which were left for debate at the sixth international FCCC conference (COP-6), which met in November 2000 in The Hague.²⁸² At COP-6 the industrialized countries were expected to decide whether to ratify the Kyoto Protocol and to determine how it would be implemented.²⁸³ On November 25, 2000, however, the negotiations broke down and in December 2000 the Parties were continuing to try to work out their differences.²⁸⁴

Conclusion

EPA does not have any clear authority to regulate GHGs. Given the extent of the congressional efforts to address the issues concerning GHGs and the absence of a credible mandate, there is little support for a claim that EPA has some latent [31 ELR 10269] power and obligation under the CAA to regulate these emissions. Even if such authority exists, each of the programs that could be used to regulate GHGs requires the Administrator to make additional findings that will be difficult or impossible to support in the manner that is legally required.

For more than a decade the United States has been intensely engaged in international efforts to deal with GHGs. To deal effectively with climate changes requires the harmonization of environmental programs and standards on a global basis.²⁸⁵ However, while the nations of the world debate, GHG emissions continue to rise throughout the world.²⁸⁶

1. FUEL SYSTEMS AND EMISSION CONTROL 4 (Ken Layne ed., 1978) [hereinafter FUEL SYSTEMS].

2. DONALD J. PATTERSON & NAEIM A. HENEIN, EMISSIONS FROM COMBUSTION ENGINES AND THEIR CONTROL 125 (1972).

3. Air is comprised of 78% nitrogen, 21% oxygen, and 1% other gases. Nitrogen is converted to nitrogen oxides (NO_x) by heat, and large quantities of NO_x are created at temperatures above 2,500 degrees Fahrenheit (F). FUEL SYSTEMS, supra note 1, at 4.

4. Nitrogen dioxide (NO₂) dissociates in the pressure of visible and ultraviolet light to form an oxygen atom. NO₂ + hv -> NO + O. The oxygen atom forms ozone if it can give off its excess energy to a third substance. O + O₂ + M -> O₃ + M. The ozone may then react with NO_x to produce NO₂. NO + O₃ -> O₂ + NO₂.

Water (H:O:H) can form the hydroxyl radical (OH) if it loses a hydrogen atom. Hydroxyl radicals react with hydrocarbons to form alkyl radicals which further react to create peroxy radicals. RH + OH -> R + H₂O O₂> RO₂. In the troposphere the peroxy radical often reacts with nitric oxide to produce nitrogen oxides. NO + RO₂ -> RO + NO₂. Thus, hydrocarbons provide another way to convert NO to NO₂. The peroxy radical also reacts to form ozone. RO₂ + O₂ + hv -> RO + O₃. HOUSTON MILLER & DEBORAH HILL, LOST IN THE OZONE: A LAYMAN'S GUIDE TO HOT TOPICS IN ATMOSPHERIC CHEMISTRY 27-33 (1996).

5. Combustion that produces completely oxidized products is known as chemically correct, theoretical, or stoichiometric combustion. EDWARD F. OBERT, INTERNAL COMBUSTION ENGINES AND AIR POLLUTION 90 (3d ed. 1973). A chemically correct equation for indolene, a standard blended fuel used for emission testing, is:

C₇H[13.02] + 10.255 O₂ + 38.6 N₂ —> 7 CO₂ + 6.51 H₂O + 38.6 N₂,

PATTERSON & HENEIN, supra note 2, at 97.

6. See generally NATIONAL SCIENCE & TECHNOLOGY COUNCIL, COMMITTEE ON ENV'T & NATURAL RESOURCES OF THE NATIONAL SCIENCE & TECHNOLOGY COUNCIL, OUR CHANGING PLANET THE FY 1998 U.S. GLOBAL CHANGE RESEARCH PROGRAM (1997) [hereinafter OUR CHANGING PLANET].

7. JOHN HOUGHTON, GLOBAL WARMING: THE COMPLETE BRIEFING 12 (2d ed. 1997).

8. Id.

9. Id.

10. Id. at 11.

11. U.S. EPA, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990-1997, ES-1 (1999) (EPA 236-R-99-003) [hereinafter INVENTORY].

12. See id. at ES-2.

13. See id. at ES-1.

14. See id.

15. See id.

16. Id.

17. Tom M.L. Wigley, The Science of Climate Change: Global and U.S. Perspectives 1 (Pew Center on Global Climate Change 1999), available at www.pewclimate.org (last visited Nov. 15, 2000). See also OUR CHANGING PLANET, supra note 6, at 113. See also OFFICE OF SCIENCE & TECHNOLOGY, REPORT OF THE NATIONAL ASSESSMENT SYNTHESIS TEAM, CLIMATE CHANGE IMPACTS ON THE UNITED STATES, THE POTENTIAL CONSEQUENCES OF CLIMATE VARIABILITY AND CHANGE 10 (draft) (June 2000) [hereinafter CLIMATE CHANGE IMPACTS].

18. OUR CHANGING PLANET, supra note 6, at 9.

19. A Greenhouse Toolkit, WASH. POST, Nov. 12, 1997, at H4 (referencing the United Nation's Intergovernmental Panel on Climate Change (IPCC)); NATIONAL ACADEMY OF SCIENCES, POLICY IMPLICATIONS OF GREENHOUSE WARMING 2 (1991) [hereinafter NAS]. (The study projected a 1.9 degrees C to 5.2 degrees C rise if CO₂ doubles.)

20. Synopsis of Administration Economic Analysis of Costs of Meeting Kyoto Protocol Targets Released July 31, 1998, Daily Env't Rep. (BNA), Aug. 3, 1998, at E-1.

21. OUR CHANGING PLANET, supra note 6, at 11.

22. Id. at 1.

23. Id. at 12; Wigley, supra note 17, at 23.

24. For a discussion of the limitation of general circulation models and the funding of this complex computer model research to evaluate climate change, see U.S. GAO, GLOBAL WARMING: LIMITATIONS OF GENERAL CIRCULATION MODELS AND COSTS OF MODELING EFFORTS (1995) (GAO/RCED-95-164).

25. Warren M. Washington, Where's the Heat?. NATURAL HIST., Mar. 1990, at 67, 70.

26. WORLD METEOROLOGICAL SOCIETY/UNITED NATIONS ENVIRONMENT PROGRAMME, SCIENTIFIC ASSESSMENT OF CLIMATE CHANGE 2 (1990).

27. Wigley, supra note 17, at 21. IPCC studies vary depending on the assumptions used.

28. James E. Neumann et al., Sea-Level Rise and Global Climate Change 3 (Pew Center on Global Climate Change 2000).

29. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF SCIENCE & TECH. POLICY, CLIMATE CHANGE STATE OF KNOWLEDGE 13 (1997) [hereinafter CLIMATE CHANGE].

30. Durwood Zaelke & James Cameron, Global Warming and Climate Change—An Overview of the International Legal Process, 5 AM. U. J. INT'L L. & POL'Y 249, 259 (1990). The most alarming projections involve a rise in sea level of 215 feet if the Antarctica ice sheet melted. This is said to have occurred about three million years ago when global temperatures were only a few degrees warmer than today. See also Boyce Rensberger, Global Warming's Effect on Sea Level Reexamined, WASH. POST, Oct. 29, 1992, at A3; WILLIAM K. STEVENS, THE CHANGE IN THE WEATHER 257 (1999).

31. See Wigley, supra note 17, at 5. See also NAS, supra note 19, at 1.

32. CLIMATE CHANGE, supra note 29, at 6. See also WORLD RESOURCES INST., WORLD RESOURCES 1998-1999, 176 (1998).

33. CLIMATE CHANGE, supra note 29.

34. See WORLD RESOURCES 1998-1999, supra note 32, at 344-45, tbl. 16.1.

35. MOBIL CORP., CLIMATE TECHNOLOGY AND CARBON DIOXIDE EMISSIONS, A GLOBAL REVIEW AND ASSESSMENT 5 (1999).

36. INVENTORY, supra note 11, at ES-3, tbl. ES-1.

37. Id. at 6-3, 6-4.

38. Id. at ES-3, tbl. ES-1.

39. Id.

40. Id. at ES-7, tbl. ES-4.

41. Id. at ES-6.

42. Christopher Flavin, Slowing Global Warming, in STATE OF THE WORLD 1990 18 (Lester Brown ed., 1990).

43. Id.

44. Bert Bolin, The Carbon Cycle, in THE BIOSPHERE 49 (Scientific America ed., 1970).

45. Id.

46. Id.

47. Id. at 50.

48. Id. at 51.

49. Id. at 52.

50. Id. at 49.

51. Id. at 50.

52. Id. at 52.

53. Id.

54. Id. at 55.

55. There was a net loss of 180 million hectacres of the world's forests between 1980 and 1995. See WORLD RESOURCES 1998-1999, supra note 32, at 185.

56. U.S. DEP'T OF STATE, CLIMATE ACTION REPORT (1997) [hereinafter CLIMATE ACTION REPORT].

57. NAS, supra note 19, at 88.

58. INVENTORY, supra note 11, at ES-8.

59. Id. at ES-9.

60. Id. EPA is required by CAA § 602(e) to publish the global warming potentials (GWPs) for ozone-depleting substances that are Class I or Class II controlled substances. EPA published a proposed listing on October 6, 1995, which contained a full discussion of the relevant science. Protection of Stratospheric Ozone: Listing of Global Warming Potential for Ozone-Depleting Substances, 60 Fed. Reg. 52357 (Oct. 16, 1995) (codified at 40 C.F.R. pt. 82). On January 19, 1996, EPA met its obligations by referencing three scientific documents as it established GWPs for 16 ozone-depleting chemicals. Protection of Stratospheric Ozone: Listing of Global Warming Potential for Ozone-Depleting Substances, 61 Fed. Reg. 1284 (Jan. 16, 1996).

The references listed by EPA are: (1) United Nations Environment Program (UNEP), February 1995, Scientific Assessment of Ozone Depletion: 1994, Chapter 13: "Ozone Depleting Potentials, Global Warming Potentials and Future Chlorine/Bromine Loading"; (2) Intergovernmental Panel on Climate Change (IPCC), 1995, Climare Change 1994; Radiative Forcing of Climate Change and an Evaluation of the IPCC IS92 Emission Scenarios, "Summary for Policymakers: Radiative Forcing of Climate Change" 32-34; and (3) John S. Daniel, Susan Solomon, and Daniel L. Albritton, On the Evaluation of Halocarbon Radiative Forcing and Global Warming Potentials, J. GEOPHYSICAL RES., Jan. 20, 1995, at D1.

EPA published the GWPs for Class I and II substances as they are listed in the first reference—Scientific Assessment of Ozone Depletion: 1994. They are found at 40 C.F.R. pt. 82, subpt. A, app. I.

61. INVENTORY, supra note 11, at ES-8.

62. See NATIONAL ACADEMY OF SCIENCES, POLICY IMPLICATIONS FOR GREENHOUSE WARMING 6 (1991); Richard B. Stewart & Jonathan B. Wiener, The Comprehensive Approach to Global Climate Policy: Issues of Design and Practicality, 9 ARIZ. J. INT'L & COMP. L. 83 (1992).

63. MMTCE can be calculated from GWP using the following formula: MMTCE = Teragrams of a gas x GWP x 12/44. See also NAS, supra note 19, at 61.

64. Stewart & Wiener, supra note 62.

65. INVENTORY, supra note 11, at ES-9.

66. STACY C. DAVIS, TRANSPORTATION ENERGY DATA BOOK, Ed. 19, 3-9, tbl. 3.8 and 3-6, tbl. 3.5 (1999) (ORNL-6958).

67. HOUGHTON, supra note 7, at 35.

68. INVENTORY, supra note 11, calculated from data at ES-3, tbl. ES-1.

69. Stewart & Weiner, supra note 62, at 93.

70. Id. at 91.

71. CLIMATE ACTION REPORT, supra note 56, ex. 3 at 13.

72. DAVIS, supra note 66, at 3-9, tbl. 3.8; INVENTORY, supra note 11, at ES-3, tbl. ES-1.

73. DAVIS, supra note 66, at 3-6, tbl. 3.5.

74. INVENTORY, supra note 11, at ES-3, ES-4. Several states, most recently Texas, have launched preliminary studies into emissions of greenhouse gases and possible methods of curtailing them in order to address global warming issues. See Texas Takes Preliminary Steps on Global Warming, CLEAN AIR REP., Aug. 31, 2000, at 16.

75. HOUGHTON, supra note 7, at 97.

76. Id.

77. Roger Revelle & Paul Waggoner, Effects of Climatic Change on Water Supplies in the Western United States, in THE CHALLENGE OF GLOBAL WARMING 151 (Dean Abrahamson ed., 1989).

78. California Energy Comm'n, Glimpses Into the Greenhouse, CAL. WATERFRONT AGE, Fall 1989, at 14; JOEL SMITH & DENNIS TIRPAK, THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES, U.S. EPA DRAFT REPORT TO CONGRESS (1988); Kenneth D. Frederick & Peter H. Gleick, Water & Global Climate Change: Potential Impacts on U.S. Water Resources (Pew Center on Global Climate Change 1999).

79. Twenty states have or are developing state plans to reduce GHG emissions. More than 20 states have joined the Rebuild America program to improve energy efficiency. Over 30 state governments have joined EPA's Green Lights program to improve lighting efficiency. Douglas Hill, Role of Municipal and State Governments in Greenhouse Gas Emissions Trading, 11 ENVTL. L. IN N.Y. 21 (2000).

80. 42 U.S.C. §§ 7401-7671g, ELR STAT. CAA §§ 101-618.

81. Id. § 7602(g), ELR STAT. CAA § 302(g).

82. U.S. EPA, EPA's Authority to Regulate Pollutants Emitted by Electric Power Generation Sources, Memorandum from Jonathan Z. Cannon, General Counsel (Apr. 10, 1998). This was reiterated in the October 6, 1999, testimony of EPA General Counsel Gary S. Guzy, before a joint hearing of the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs of the Committee on Government Reform and the Subcommittee on Energy and the Environment of the Committee on Science, U.S. House of Representatives, Oct. 6, 1999, at http://www.epa.gov/ocirpage/testimony/100699gg.htm (last visited Nov. 15, 2000). His position was repeated in Correspondence from Gary S. Guzy to Rep. McIntosh, Chairman, Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs of the Committee on Government Reform, U.S. House of Representatives, Dec. 1, 1999. See also James Kennedy, Air Pollution: No Plans to Regulate Carbon Dioxide, Although Legal Authority Exists. EPA Says, Daily Env't Rep. (BNA), Oct. 8, 1999, at A-1.

83. Id.

84. 40 C.F.R. § 50.1(e)

85. See Alabama Power Co. v. Costle, 636 F.2d 323, 10 ELR 20001 (D.C. Cir. 1979).

86. The CAA Amendments of 1990, S. 1630, 101st Cong. § 206 (1990).

87. Id. § 501.

88. S. REP. NO. 101-228, at 385 (1989).

89. Id.

90. Id. § 502(a).

91. EPA has defined "manufacture" under the Toxic Substances Control Act, see 40 C.F.R. § 720.3(r)(2), to include byproducts or substances produced "coincidentally" with the manufacture of the primary substance. Arguably the right to control manufactured substances would have included the right to regulate associated CO₂ emissions. See National Mining Ass'n Memorandum, Oct. 12, 1998, at 36, n.88.

92. 136 CONG. REC. 6479 (1989).

93. H.R. 3030, 101st Cong., 135 CONG. REC. 16563 (1989).

94. H.R. REP. NO. 101-490, at pts. 1-2 (1990).

95. 136 CONG. REC. 11964 (1990).

96. Id. at 11965.

97. H.R. CONF. REP. NO. 101-952, at 335 (1990).

98. 42 U.S.C. § 7671a(e), ELR STAT. CAA § 602(e).

99. Immigration & Naturalization Serv. v. Cardozo-Fonseca, 480 U.S. 421, 442-43 (1987).

100. American Petroleum Inst. v. EPA, 52 F.3d 1113, 1120, 25 ELR 20824, 20827 (D.C. Cir. 1995) (citing Ethyl Corp. v. EPA, 51 F.3d 1053, 25 ELR 20817 (D.C. Cir. 1995)); see also Nat'l Mining Ass'n v. Department of the Interior, 105 F.3d 691, 27 ELR 20499 (D.C. Cir. 1997).

101. American Petroleum Inst. v. EPA, 198 F.3d 275, 279, 30 ELR 20296, 20298 (D.C. Cir. 2000). See also General Motors Corp. v. United States, 496 U.S. 530, 20 ELR 20959 (1990); Russello v. United States, 464 U.S. 16, 23 (1983).

102. U.S. EPA General Counsel Gary S. Guzy, Testimony Before a Joint Hearing of the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs of the Committee on Government Reform and the Subcommittee on Energy and Environment of the Committee on Science, U.S. House of Representatives, Oct. 6, 1999, at http://www.epa.gpv/ocirpage/testimony/100699gg.htm (last visited Nov. 15, 2000).

103. Letter from U.S. EPA General Counsel Gary S. Guzy to Congressman David M. McIntosh, Chairman, Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, Committee on Government Reform, U.S. House of Representatives (Dec. 1, 1999).

104. CAA § 103(g) provides EPA with authority to research and develop nonregulatory strategies to prevent pollution. CO₂ from stationary sources is a substance listed for this effort.

105. 42 U.S.C. §§ 7407, 7410, ELR STAT. CAA §§ 107, 110.

106. Id. § 7408(a)(1), ELR STAT. CAA § 108(a)(1).

107. Id. § 7409(b)(1), ELR STAT. CAA § 109(b)(1).

108. For a more thorough coverage of this process, see Prof. Reitze's forthcoming treatise.

109. 42 U.S.C. § 7426, ELR STAT. CAA § 126.

110. See New York v. EPA, 852 F.2d 574, 18 ELR 21194 (D.C. Cir. 1988).

111. This may be changing as EPA begins to implement its SIP process. See, e.g., Approval and Promulgation of Implementation Plans; New York; Nitrogen Oxides Budget and Allowance Trading Program, 65 Fed. Reg. 76197 (proposed Dec. 6, 2000) (to be codified at 40 C.F.R. pt.52). See also Final Rule to Extend the Stay of Action on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport, 64 Fed. Reg. 67781 (Dec. 3, 1999).

112. See Union Elec. Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1975); Natural Resources Defense Council v. Train, 545 F.2d 320, 7 ELR 20004 (2d Cir. 1976).

113. There are small variations between the northern and southern hemisphere of about 2 ppm because more fossil fuel burning occurs in the northern hemisphere. HOUGHTON, supra note 7, at 27.

114. See supra note 32 and accompanying text.

115. 42 U.S.C. § 7503(a)(2), ELR STAT. CAA § 173(a)(2).

116. Id. § 7501(3), ELR STAT. CAA § 171(3).

117. Id. §§ 7470-7492, ELR STAT. CAA §§ 160-169B.

118. Id. § 7479(3), ELR STAT. CAA § 169(3). Likewise, EPA can not effectively regulate CO₂ from new sources under CAA § 111.

119. Id. § 7409(b)(2), ELR STAT. CAA § 109(b)(2).

120. See Huffman v. Western Nuclear, Inc. 486 U.S. 663, 673 (1988); Public Citizen v. Dep't of Justice, 491 U.S. 440, 454 (1988).

121. NSPS are technology-based standards that are uniform regardless of the ambient air levels. They must be based on "the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated." 42 U.S.C. § 7411(a)(1), ELR STAT. CAA § 111(a)(1). A standard established pursuant to § 111 must be capable of being met under the most adverse conditions which can reasonably be expected. National Lime Ass'n v. EPA, 627 F.2d 416, 10 ELR 20366 (D.C. Cir. 1980). It must be achievable by the industry and cannot be exorbitantly costly. Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 3 ELR 20732 (D.C. Cir. 1973). There must be available technology or what may reasonably projected (with appropriate time for compliance). Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 3 ELR 20642 (D.C. Cir. 1973).

122. NSR is used here to mean the requirements imposed on new or modified sources by both the nonattainment and PSD programs.

123. See Bailey v. United States, 516 U.S. 137, 145 (1995) (the meaning of statutory language depends on its context); see also National Bank of Or. v. Independent Ins. Agents of Am., 508 U.S. 439, 455 (1992).

124. 42 U.S.C. § 7412, ELR STAT. CAA § 112.

125. Id. § 7412(b)(1), ELR STAT. CAA § 112(b)(1).

126. Id. § 7412(b)(2), ELR STAT. CAA § 112(b)(2).

127. Id.

128. Id.

129. Letter from EPA's General Counsel, supra note 103.

130. INVENTORY, supra note 11, at ES-3, tbl. ES-1.

131. STAFF OF HOUSE COMM. ON ENERGY & COMMERCE, 101ST CONG., REPORT ON H.R. 3030, H.R. REP. NO. 101-490, pt. 1, at 350 (1990). However, the senate report is more ambiguous and would allow environmental effects to include a significant adverse effect on the environment. See, STAFF OF SENATE COMM. ON ENV'T & PUBLIC WORKS, 101ST CONG., REPORT ON S. 1630, S. REP. NO. 101-228, at 162 (1989).

132. 42 U.S.C. § 7412(a)(1), ELR STAT. CAA § 112(a)(1). Moreover, EPA has a "Great Water Program" pursuant to CAA § 112(m) to deal with atmospheric deposition of HAPs, and other pollutants, in order to protect major water bodies.

133. Ethyl Corp. v. EPA, 541 F.2d 1, 6 ELR 20267 (1976) (lead standards); see also American Trucking Ass'n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999).

134. Veronique Bugnion & David M. Reiner, A Game of Climate Chicken: Can EPA Regulate Greenhouse Gases Before the U.S. Senate Ratifies the Kyoto Protocol?, in MIT JOINT PROGRAM ON SCIENCE AND POLICY OF GLOBAL CHANGE REPORT NO. 57 (Nov. 1999).

135. 42 U.S.C. § 7415, ELR STAT. CAA § 115.

136. See Thomas v. New York, 802 F.2d 1443, 16 ELR 20925 (D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987); Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 1525, 20 ELR 21354 (D.C. Cir. 1990).

137. 42 U.S.C. § 7671a(a), ELR STAT. CAA § 602(a).

138. Id. § 7671a(e), ELR STAT. CAA § 602(e).

139. See supra notes 95-101 and accompanying text.

140. Pub. L. No. 101-549 (1990).

141. See also 42 U.S.C. § 7671a(e), ELR STAT. CAA § 602(e); Pub. L. No. 101-549, § 821, modifies 42 U.S.C. § 7651k(b) & (c), ELR STAT. CAA § 412(b) & (c).

142. 42 U.S.C. § 7403(g), ELR STAT. CAA § 103(g).

143. Id. § 7403(g), (g)(1), (g)(2), (g)(3), and (g)(4), ELR STAT. CAA § 103(g), (g)(1), (g)(2), (g)(3), and (g)(4).

144. Id. § 7403(g), ELR STAT. CAA § 103(g).

145. Id. § 7651k, ELR STAT. CAA § 412 (see note).

146. Id.

147. 42 U.S.C. § 7521(a)(1), ELR STAT. CAA § 202(a)(1).

148. Id. § 7602(h), ELR STAT. CAA § 302(h).

149. The Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485, provided in § 302(g): "All language referring to adverse effects on welfare shall include but not be limited to injury to agricultural crops and livestock damage, the deterioration of property, and hazards to transportation." Climate was listed along with meteorology and topography as parameters to be considered in establishing atmospheric areas pursuant to CAA § 107. See Conference Report to accompany S.780, 90th Cong. § 7 (1967).

150. 42 U.S.C. § 7602(h), ELR STAT. CAA § 302(h).

151. Pub. L. No. 101-549, § 109 (1990).

152. The "effects on welfare" language appears in the Senate bill S. 4358 in § 110(b) dealing with national air quality goals which were to protect the public health and welfare from "adverse effects on soils, water, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, as well as effects on economic values." See A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1970, 93d Cong., 2d Sess. Vol. 1, 543 (January 1974) (Serial No. 93-18). THE REPORT OF THE COMMITTEE ON PUBLIC WORKS, NATIONAL AIR QUALITY STANDARDS ACT OF 1970, 91st Cong., 2d Sess., Report No. 91-1196, at 11 (Sept. 17, 1970), has no explanation beyond repeating the statutory language. Id. at 411. After the bill was sent to the conference committee and ultimately enacted the language quoted in the text was added in § 15(a)(1) of the reported bill as changes to CAA § 302. H.R. CONF. REP.NO. 91-1783 (1970); see LEGISLATIVE HISTORY, id. at 187. This was the way it was enacted in Public Law No. 61-604. Id. at 101.

153. THE FIRST ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY 95 (1970) reported that CO₂ emissions may increase the earth's surface temperature. But it concluded that "any attempt to extrapolate the future effect of carbon dioxide on climate must be uncertain because the function of carbon dioxide that will enter the ocean is unknown." Id. at 96. The report discusses particulate pollution which may "accelerate temperature drops—and thus help compensate for any carbon dioxide-generated temperature rise…." Id. at 97. The report discusses a recent cooling trend and mentions the possibility of air pollution bringing a return of an ice age. Id. at 98.

In 1970, a study required by CAA § 211(a) of the Air Quality Act of 1967 concerning the need for national emission standards for stationary standards was prepared for Congress by the Secretary of Health, Education, and Welfare. Senate Documents, 91st Cong., 2d Sess. Vol. 1-1, Miscellaneous. S. Doc. No. 91-63 (1970). The thrust of the report was "that man may be changing his environment." Id. at 74. But there is no specific mention of global warming or the effects of GHGs.

154. STAFF OF SENATE SUBCOMM. ON AIR & WATER POLLUTION, 93D CONG., REPORT ON THE IMPACT OF AUTO EMISSION STANDARDS SERIAL NO. 93-11 (1973).

155. Id. § 7521(l)(1), ELR STAT. CAA § 202(l)(1).

156. Id. § 7521(l)(2), ELR STAT. CAA § 202(l)(2).

157. U.S. EPA, NATIONAL AIR QUALITY AND EMISSIONS TRENDS REPORT 1997, at 74 (Dec. 1998) (454/R-98-016).

158. Id. at 80.

159. 42 U.S.C. § 7412(b)(3) & (f), 7521(l), ELR STAT. CAA § 112(b)(3) & (f), 202(l).

160. Draft Integrated Urban Air Toxics Strategy to Comply With Section 112(d), 112(c)(3) and Section 202(1) of the Clean Air Act, 63 Fed. Reg. 49239 (Sept. 14, 1998) (notice); National Air Toxics Program: The Integrated Urban Strategy, 64 Fed. Reg. 38705 (July 19, 1999) (notice).

161. FRANK GRAD ET AL., THE AUTOMOBILE AND THE REGULATION OF ITS IMPACT ON THE ENVIRONMENT 119 (1975).

162. Pub. L. No. 91-604 (1970).

163. Id. § 202(b).

164. 42 U.S.C. § 7521(g) & (h), ELR STAT. CAA § 202(g) & (h).

165. Id. § 7521(a)(3)(A), ELR STAT. CAA § 202(a)(3)(A).

166. Id. § 7521(a)(3)(B), ELR STAT. CAA § 202(a)(3)(B).

167. Id. § 7521(a)(3)(A)(i), ELR STAT. CAA § 202(a)(3)(A)(i).

168. Id. § 7521(a)(2), ELR STAT. CAA § 202(a)(2).

169. Id. § 7521(b)(1)(C), ELR STAT. CAA § 202(b)(1)(C).

170. Id. § 7521(a)(4)(A), ELR STAT. CAA § 202(a)(4)(A).

171. Id. § 7521(a)(4)(B), ELR STAT. CAA § 202(a)(4)(B).

172. Id. § 7521(l)(2), ELR STAT. CAA § 202(l)(2).

173. Id. § 7521(l)(1), ELR STAT. CAA § 202(l)(1).

174. See forthcoming treatise.

175. Id. § 7521(l)(2), ELR STAT. CAA § 202(l)(2).

176. Pub. L. No. 91-604 (1970).

177. Pub. L. No. 95-190, § 14(a)(60)-(65), (b)(5), 91 Stat. 1403, 1405.

178. S. 4358 was introduced in the 91st Congress by Sen. Robert Byrd (D-W.Va.) for Sen. Edmond Muskie (D-Me.) on September 17, 1970.

179. See LEGISLATIVE HISTORY, supra note 152, at 575.

180. Id. at 501.

181. Id. at 502.

182. Id. at 425. S. REP. NO. 91-1196, at 25 (1970).

183. Id. at 424. S. REP. NO. 91-1196, at 24 (1970).

184. Id.

185. CLIMATE ACTION REPORT, supra note 56, at 17.

186. 92 Stat. 601 (1978).

187. Pub. L. No. 95-367 (codified at 15 U.S.C. § 2901 et seq.).

188. Id. §§ 5(f)(2) and 5(d)(9).

189. G.A. Res. 43/53 (1988).

190. G.A. Res. 44/228 (1989).

191. CONGRESS OF THE UNITED STATES, OFFICE OF TECHNOLOGY ASSESSMENT, CHANGING BY DEGREES: STEPS TO REDUCE GREENHOUSE GASES 7 (1991). The nations were Australia, Austria, Canada, Denmark, France, Germany, Italy, Japan, the Netherlands, New Zealand, Norway, Sweden, and the United Kingdom.

192. United States Increasingly Isolated on Global Warming, NUCLEUS, Summer 1990, at 3. NO_x also is subject to the NO_x Kyoto Protocol that aims to assure that by the end of 1994 emissions do not exceed a baseline. The Kyoto Protocol was negotiated under the framework of the 1979 Convention on Long-Range Transboundary Air Pollution. It was signed in October 1988 and involved 17 industrialized nations when it entered into force in February 1991. U.S. GAO, INTERNATIONAL ENVIRONMENT: INTERNATIONAL AGREEMENTS ARE NOT WELL MONITORED 15 (1992) (GAO/RCED-92-43).

193. The Department of Energy Organization Act, 42 U.S.C. §§ 7101-7140, that created the U.S. Department of Energy (DOE) provided in title VIII for the President to submit a National Energy Policy Plan to Congress by Apr. 1, 1979 and every two years thereafter. The plan was to consider energy conservation and environmental protection along with the more traditional considerations. There were submissions under Title VIII: by the Carter Administration in 1979, by the Reagan Administration in 1981, 1983, 1985, and 1987, and by the Bush Administration in 1991. U.S. GAO, CHANGES NEEDED TO MAKE NATIONAL ENERGY PLANNING MORE USEFUL 9 (1993) (GAO/RCED-93-29).

194. NATIONAL ENERGY STRATEGY, FIRST EDITION 1991/1992, at 30-72 (1992).

195. Id. at 179.

196. Id. at 181.

197. Pub. L. No. 101-606 (1990). For further information see http://www.gcrio.org.

198. 7 U.S.C. § 6701.

199. Charles E. DiLeva, International Environmental Law and Development, GEO. INT'L ENVTL. L. REV. 501, 513 (1998).

200. CLIMATE ACTION REPORT, supra note 56, at 251.

201. U.S GAO, INFORMATION ON GLOBAL ENVIRONMENTAL FACILITY'S FUNDING AND PROJECTS 1,5 (1999) (GAO/RCED-99-149).

202. Nicholas Yost, Rio and the Road Beyond, 11 ENVTL. L. NEWSL, (ABA), Summer 1992, at 1; Donald Brown, The Relevance of "Agenda 21" to the States, 14 ENVTL. L. NEWSL, (ABA), Fall/Winter 1994-1995, at 1.

203. Agenda 21's first section deals with Social and Economic Dimensions. It has chapters on international cooperation, combating poverty, promoting human health, population issues, and consumption issues. This last subject discusses the developing nations' concern that the industrialized nations use a disproportionate share of the world's resources and cause most of the global environmental problems. Agenda 21's second section covers the Conservation and Management of Resources for Development. It includes chapters on protection of the atmosphere, land use planning, water resources, hazardous waste, solid waste, and other topics. Its third section covers the role of interest groups in dealing with environmental issues. Chapters cover the role of women, children, indigenous people, nongovernmental organizations, trade unions, industry, farmers, and the scientific and technology community. The fourth section deals with the Means of Implementation and covers subjects such as financial resources, environmentally sound technology, sustainable development, international institutions, and legal development. There also was a Rio Declaration that was a shorter statement of principles of shared aspirations; it emphasizes sustainable development and has provisions for meeting development needs while protecting the environment. It also has specific, more focused provisions calling for internalizing environmental costs, immediate notification after environmental disasters, right-to-know provisions concerning hazardous materials and activities, and a provision calling for environmental impact statements.

204. The Biodiversity Convention was signed by all industrialized countries except the United States. The U.S. objection was primarily related to provisions concerning patent laws applicable to drugs and biotechnology.

205. The CSD has been criticized as incapable of addressing international environmental challenges. It lacks political support from the nations that make up the United Nations; it has an inadequate budget; and it competes for jurisdiction over environmental issues with the United Nations Environment Program (UNEP), the United Nations Development Program (UNDP), as well as other U.N. organizations and the secretariats to the numerous environmental treaties. See Daniel C. Esty, Stepping Up to the Global Environmental Challenge, 8 FORDHAM ENVTL. L.J. 103, 110 (1996).

206. ECONOMIC REPORT OF THE PRESIDENT 166 (1998).

207. Bush Holds Talks to One Binding Requirement on Global Warming, CLEAN AIR REP., June 18, 1992, at 1. The background work for the Convention on Climate Change is discussed in Zaelke & Cameron, supra note 30, at 272.

208. United Nations Framework Convention on Climate Change, May 9, 1992, art. 4, sec. 2, 31 I.L.M. 849.

209. Id. art. 1.5.

210. U.N. Framework Convention on Climate Change: Hearing Before Senate Comm. on Foreign Relations, 100th Cong. 93 (1992).

211. Id.

212. Senate Approves International Treaty Amid Leader's Call for More Controls, CLEAN AIR REP., Oct. 22, 1991, at 34.

213. PRESIDENT WILLIAM J. CLINTON & VICE PRESIDENT ALBERT GORE JR., THE CLIMATE CHANGE ACTION PLAN, preface (Oct. 1993).

214. DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 130, 117 (1998); see also Secretariat homepage, at http://www.unfccc.de/ (last visited Nov. 12, 2000).

215. Pub. L. No. 102-486 (1992), 42 U.S.C. § 13385.

216. Launch of EPA-DOE "Climate-Wise" Program for Cutting Emissions Expected in February, Daily Env't Rep. (BNA), Dec. 2, 1993, at A-1.

217. H.R. 5966, 101st Cong., 136 CONG. REC. 37088 (1990); H.R. 2663, 102d Cong., 137 CONG. REC. H 4611 (1991).

218. 138 CONG. REC. S1132 (1992); 138 CONG. REC. S17627 (1992).

219. 42 U.S.C. § 7321; see also EP Act § 1604, 42 U.S.C. § 13384.

220. For background see U.S. GAO, DOE'S PROGRAM AND ACTIVITIES RELEVANT TO THE GLOBAL WARMINGPHENOMENON (1990) (GAO/RCED-90-74BR).

221. 42 U.S.C. § 7321.

222. CLIMATE ACTION REPORT, supra note 56, at 38.

223. See 42 U.S.C. § 13385.

224. Pamela Wexler & David Hodas, Special Committee on Climate Change and Sustainable Development 1995 Annual Report, in NATURAL RESOURCES, ENERGY, AND ENVIRONMENTAL LAW 1995, THE YEAR IN REVIEW 164, 168 (1996).

225. Id. at 169.

226. See, e.g., Massachusetts Elec. Co. v. Dep't of Pub. Utils., 643 N.E.2d 1029 (Mass. 1994).

227. DAVIS, supra note 66, at 3-6, tbl. 3.5. Higher than projected economic growth, lower than expected energy prices, and a population growth of 1.0% a year compared with the 0.7% growth used to develop the 1993 Climate Change Action Plan (CCAP) are some of the reasons the United States fell short of its target. U.S. GAO, GLOBAL WARMING: DIFFICULTIES ASSESSING COUNTRIES' PROGRESS STABILIZING EMISSIONS OF GREENHOUSE GASES 9 (1996) (GAO/RCED-96-188).

228. U.S. EPA, ESTIMATION OF GREENHOUSE GAS EMISSIONS AND SINKS FOR THE UNITED STATES (1990). The contribution to global warming from U.S. emissions was 69% from CO₂, 23% from CFCs, 5% from CH[4], and 3% from N₂O, primarily from fertilizer use. See also David Hodas, The Climate Change Convention and Evolving Legal Models of Sustainable Development, 13 PACE ENVTL. L. REV. 75 (1995).

229. U.S. EPA, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990-1993, ES-4 (1994) (EPA 230-R-94-014) [hereinafter 1994 INVENTORY].

230. Id. at ES-2. The impact of the photochemically important gases (CO, NO_x, nonmethane VOCs, and SO₂) were not included in the estimate because there was no approved method to estimate their contribution to global warming. Id.

231. THE CLIMATE CHANGE ACTION PLAN, supra note 213. This plan is evaluated in U.S. GAO, GLOBAL WARMING: INFORMATION ON THE RESULTS OF FOUR OF EPA'S VOLUNTARY CLIMATE CHANGE PROGRAMS (1997) (GAO/RCED-97-163).

232. 1994 INVENTORY, supra note 229.

233. Id. at ii.

234. Id. at 1.

235. Id. at 4.

236. Susan Bruninga, Climate Change: Focus of Climate Change Talks Should Be on Current Treaty Provisions, Group Says, Daily Env't Rep. (BNA), Feb. 2, 1995, at A-9.

237. For an interesting evaluation of the Rio Declaration, see David Wirth, The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa?, 29 GA. L. REV. 599 (1995).

238. U.S. Climate Action Network, Special Report, Apr. 1994, at A-10.

239. Id.

240. Climate Change: Unresolved Issues Face U.N. Committee at Final Session of Climate Change Talks, Daily Env't Rep. (BNA), Feb. 6, 1995, at AA-1.

241. Climate Change: Global Warming Consensus Unchanged, Scientific Official Tells U.N. Session, Daily Env't Rep. (BNA), Feb. 7, 1995, at A-12. The IPCC, the United Nations' advisory body for scientific issues concerning climate change, stressed that the experts that work in this field endorsed the need to curb emissions of GHGs.

242. Id.

243. Climate Change: Delegates Take up Policy Implications of Report Finding Human Link to Warming, Daily Env't Rep. (BNA), Feb. 27, 1996, at A-5.

244. Jonathan Martel & Elizabeth Stringer, The Road to Kyoto, Daily Env't Rep. (BNA), Sept. 29, 1997, at B-1.

245. Wexler & Hodas, supra note 224.

246. The report is entitled The IPCC Worlding Group I 1995 Summary for Policymakers. See IPCC Working Group Report Documents "Discernible Human Influence" on Climate, Daily Env't Rep. (BNA), Dec. 1, 1995, at A-6 [hereinafter IPCC Working Group]; Intergovernmental Panel on Climate Change, Worlding Group I, 1995 Summary for Policy Makers, Agreed to Nov. 29 in Madrid (Text), Daily Env't Rep. (BNA), Dec. 1, 1995, at E-15 [hereinafter Intergovernmental Panel].

247. IPCC Working Group, supra note 246, at A-6.

248. 50 Percent Growth in World Energy Demand Will Fuel Carbon Emissions, Report Asserts, Daily Env't Rep. (BNA), May 17, 1996, at A-1. Oil consumption was projected to rise from 69 million barrels per day (bpd) to 99 million bpd by 2015. Natural gas was expected to go from 3% to 25% of the world's energy consumption. However, renewable energy sources, including hydroelectricity, were expected to only increase from 8% to 9.2% of the world energy by 2015.

249. Id.

250. WORLD HEALTH ORGANIZATION, CLIMATE CHANGE AND HUMAN HEALTH (1996).

251. John Parry, As Treaty Meeting Opens, Gap Widens Between Industry, Environmentalists, Daily Env't Rep. (BNA), July 9, 1996, at A-6.

252. John Parry et al., U.S., EU Present Initiatives Aimed at Cutting Greenhouse Emissions by 2005, Daily Env't Rep. (BNA), July 18, 1996, at AA-1; U.S. Proposal for Binding Controls on Greenhouse Gas Emissions Offered at U.N. Negotiations on Climate Change Released by State Department December 6, 1996, Daily Env't Rep. (BNA), Dec. 9, 1996, at E-1.

253. FRAMEWORK CONVENTION ON CLIMATE CHANGE, REPORT OF THE CONFERENCE OF THE PARTIES ON ITS SECOND SESSION, HELD AT GENEVA FROM 8 TO 19 JULY, 1996, ADDENDUM, PART TWO: ACTION TAKEN BY THE CONFERENCE OF THE PARTIES AT ITS SECOND SESSION 70, U.N. Doc. FCC/CP/1996/15Add.1 (Oct. 29, 1996).

254. Progress Cited, Next Steps Planned in Negotiations on U.N. Climate Conference, Daily Env't Rep. (BNA), July 22, 1996, at A-4.

255. John Parry & James Kennedy, Conference Approves Declaration Establishing Legally Binding Objectives, Daily Env't Rep. (BNA), July 19, 1996, at A-3.

256. EU Must Accelerate Policy to Meet Treaty's Goals, Report Says, Daily Env't Rep. (BNA) Sept. 13, 1996, at A-7.

257. 143 CONG. REC. S8113-8 (1997) (statement of Sen. Byrd).

258. Id.

259. U.S. CONST. art. II, § 2.

260. Environmental Groups, Industry Fire Volley of Pre-Kyoto Climate Studies, CLEAN AIR REP., Nov. 27, 1997, at 11. The federal Energy Information Administration (EIA) released its Annual Energy Outlook 1998 which increased its prior year's estimates of carbon emissions with carbon emissions in the United States projected to increase significantly in the next two decades based on current policies. Charles River Associates released a report, Economic Implications of the Adoption of Limits on Carbon Emissions From Industrialized Countries (1997), prepared for the automobile industry, that predicted that a policy of limiting U.S. carbon emissions to 1990 levels would cause the gross domestic product to be 1% below baseline output in the year 2010 and 2.7% below the baseline by 2030 with a loss of two-thirds of the employment in the coal industry. The Competitive Enterprise Institute published The Costs of Kyoto: Climate Change Policy and Its Implications, which claimed the risks of global warming were not as significant as the risks of the proposals for dealing with it. The World Resources Institute produced Climate Protection Policies: Can We Afford to Delay?, which said gradual efforts to deal with global warming would be more expensive than an aggressive reduction strategy. Friends of the Earth released Cool It, which took the position that the elimination of 11 subsidies for industry could reduce U.S. carbon emissions significantly. World Watch issued its study, Rising Sun, Gathering Winds: Policies to Stabilize the Climate and Strengthen Economies, which focused on successful policies used by individual nations to control emissions.

261. President Clinton's Climate Change Proposal. October 22, 1997, Daily Env't Rep. (BNA), Oct. 23, 1997, at E-2; see also White House Background Information on President Clinton's Sustainable Development Plan Dated June 26, 1997, Daily Env't Rep. (BNA), June 27, 1997, at E-1.

262. Consolidated Negotiating Text for New International Climate Change Treaty Dated Oct. 13, 1997, Daily Env't Rep. (BNA), Oct. 15, 1997, at E-1.

263. See U.N. Doc. FCCC/CP/1997/L.7/Add.1, at http://www.unfccc.de (last visited Jan. 17, 2001).

264. United Nations Framework Convention on Climate Change, May 9, 1992, supra note 208, at 872.

265. Id.

266. Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted Dec. 10, 1997, 37 I.L.M. 22, 54-56 [hereinafter Kyoto Protocol].

267. Id. art. 3.1.

268. The 15 member states of the EU have an internal agreement concerning how to divide the EU's reductions. See Joe Kirwin, EU Agrees on Burden-Sharing Plan for Emission Cuts Under Kyoto Protocol, 29 Env't Rep. (BNA) 448 (1998).

269. Kyoto Protocol, supra note 266, at Annex B, 37 I.L.M. at 42.

270. Id. arts. 4, 6, 12, and 17, 37 I.L.M. at 34, 35, 38, and 40.

271. JEREMY RABKIN, WHY SOVEREIGNTY MATTERS 81 (1998). One nation, Georgia, ratified the Kyoto Protocol but as of July 1, 1999, it had not signed it.

272. Id. at 82-83.

273. Id.

274. Id. at 5.

275. Id. at 6. For proposed approaches to trading, see Robert R. Nordhaus et al., A Framework for Achieving Environmental Integrity and the Economic Benefits of Emissions Trading Under the Kyoto Protocol, 30 ELR 11061 (Nov. 2000); Robert R. Nordhaus et al., International Emissions Trading Rules as a Compliance Tool: What Is Necessary, Effective, and Workable?, 30 ELR 10837 (Oct. 2000).

276. U.S. EPA, ACTIVITIES IMPLEMENTED JOINTLY: SECOND REPORT TO THE SECRETARIAT OF THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE 1 (1997) (EPA 236-R-97-002).

277. United Nations Conference of the Parties to the Framework Convention on Climate Change, Kyoto Protocol to the United Nations Framework Convention on Climate Change, U.N. Doc. FCCC/CP/1992/L.7/Add.1 (1997), reprinted in 37 I.L.M. 22.

278. See, e.g., Byrd-Hagel Resolution, S. Res. 98, 105th Cong. (1997) (enacted); see generally Sen. Frank H. Murkowski, The Kyoto Protocol Is Not the Answer to Climate Change, 37 HARV. J. ON LEGIS. 345, 360 (2000). The Senate's chief complaint and rationale for not ratifying the treaty is the implementation costs of the GHG emissions limits mandated by the Kyoto Protocol; see also Mitchell F. Crusto, All That Glitters Is Not Gold: A Congressionally Driven Global Environmental Policy, 11 GEO. INT'L ENVTL. L. REV. 499, 511 (1999).

279. Climate Change: 83 Countries Sign Kyoto Protocol by March 15 Deadline, U.N. Says, Daily Env't Rep. (BNA), Mar. 17, 1999, at A-1.

280. FY 1999 Appropriations for EPA Environmental Programs and Management, Pub. L. No. 105-276, tit. III.

281. Exec. Order No. 13123, 64 Fed. Reg. 30851 (June 3, 1999), ADMIN. MAT. 45107.

282. Verena Schmitt-Roschmann, Climate Change: Bonn Meeting Leaves Major Decisions on Kyoto Protocol for 2000 Discussions, Daily Env't Rep. (BNA), Nov. 9, 1999, at A-1.

283. Pamela Najor, Climate Change: U.S. Shows Little Effort to Reduce Greenhouse Gases, Environmental Groups Say, Daily Env't Rep. (BNA), Oct. 25, 1999, at AA-1. See also Laura H. Kosloff, World Views on Climate Change: To Protocol or Not to Protocol, TRENDS, 32 A.B.A. SEC. NAT. RESOURCES, ENERGY & ENVTL. L. 1, 6 (2000).

284. The talks collapsed in light of disputes between the EU and the so-called umbrella group of Australia, Canada, Japan, Norway, Russia, and the United States over the use of the "carbon sinks" and the role of emission trading. The first week of the meeting made little headway, with squabbles over procedural matters. The second was consumed by debate over the U.S. proposal promoting the use of sinks, emission credits accumulated through activity that preserves plants and soil that absorb CO₂, in the treaty's Clean Development Mechanism. EU Environment Commissioner said too much time was spent discussing "the repetition of well-known positions." The EU opposed the use of sinks, claiming that little emission reduction would be required of countries with large forest reserves in order to meet domestic reduction targets. The talks essentially ended with the departure of the United Kingdom delegation on Nov. 25 (the United Kingdom had largely sided with a U.S. compromise proposal regarding a cap of the tonnage of carbon that could be attributed to a domestic sink; Germany and several other EU members rejected the deal). U.S. environmental groups were divided in their assessment of the talks, with some blaming the United States for their failure, others pointing to the EU. Some observers, however, including Chairman Jan Pronk of the Netherlands, were hopeful that progress might be made at the next scheduled meeting, set for mid-May 2001 in Bonn. Despite the failure of the talks, the European Commission may proceed with an emissions trading system, and private groups, such as the new http://www.CO2e.com service, are also promoting emissions trading. See generally Eric Lyman, Hague Talks End Without Progress; Parties Aim for Discussions in May 2001, Daily Env't Rep. (BNA), Nov. 28, 2000, at AA-1; U.S. Participating in Effort to Revive Climate Change Talks, CLEAN AIR REP., Dec. 7, 2000, at 6.

285. See generally Robert Stavins, Policy Instruments for Climate Change: How Can National Governments Address a Global Problem?, 1997 U. CHI. LEGAL F. 293 (1997).

286. Climate Change: Greenhouse Gas Emissions Rising Across Industrialized World, OECD Says, Daily Env't Rep. (BNA), Jan. 31, 2000, at A-6. For summaries of recent reports detailing emission increases, see Environmental Law Reporter (ELR), News & Analysis, International Update, Envtl. L. Inst., at http://www.eli.org. The ELR International News & Analysis service also includes a number of articles on climate change-related topics.