March 22, 2017

Scott Pruitt . . . Should Read The Clean Air Act



Scott Pruitt made headlines last week when, while discussing EPA regulation of greenhouse gases, he announced that:

Nowhere in the equation has Congress spoken. The legislative branch has not addressed this issue at all. It’s a very fundamental question to say, “Are the tools in the toolbox available to the EPA to address this issue of CO2, as the court had recognized in 2007, with it being a pollutant?”

Mr. Pruitt was clearly not disputing that in Massachusetts v. EPA the Supreme Court held that CO2 was a “pollutant” under the Clean Air Act.  Instead, his point seems to be that while CO2 may be a pollutant, nowhere in the Clean Air Act did Congress expressly say anything about climate change or about using the Act’s regulatory mechanisms in order to protect the climate.

Mr. Pruitt, however, is wrong.  The Clean Air Act’s fundamental mechanism is what is known as an “endangerment finding.” With few exceptions, no pollutant can be regulated until EPA determines that emission of that pollutant “may reasonably be anticipated to endanger human health or welfare.”  This standard applies whenever EPA wishes to regulate emissions from vehicles, non-road engines, aircraft, power plants, industrial facilities, etc.   

If Mr. Pruitt were familiar with the Act, he would know that in Section 302(h) Congress quite clearly said what it meant when it used the word “welfare”:

All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, [etc.]

It could thus hardly be clearer that Congress understood and acknowledged that pollutants might have adverse effects on “weather” and “climate,” and that Congress authorized – indeed, mandated – that EPA regulate those pollutants throughout the Act.  If pollutants coming from cars, power plants, factories, pipelines endanger the “weather” or “climate,” then Congress has certainly “spoken” and “addressed” this issue.

Ten years ago (almost to the day), the Supreme Court confirmed that CO2 was indeed a “pollutant,” and more than eight years ago EPA issued the Endangerment Finding for Greenhouse Gases.  It is now Mr. Pruitt’s duty – sworn duty, in fact – to stop prevaricating and begin regulating emissions of those gases.