On April 27, NYU Law’s Institute for Policy Integrity released a report called “The Road Ahead: EPA’s Options and Obligations for Regulating Greenhouse Gases.” This detailed legal analysis provides a thorough discussion of greenhouse gas regulation under the Clean Air Act and how far the agency should go to regulate greenhouse gases.
According to the report, if the EPA pursues traditional command-and-control regulation under the Clean Air Act, it may set itself on a collision course with Congress, which has been moving to design cap-and-trade legislation. If the EPA adopts mandatory control regulation and Congress later enacts a cap-and-trade system, there will be significant and unnecessary transition costs for the American economy, the report found. Under the Clean Air Act, the EPA has a great deal of flexibility to design regulatory programs and it must use that flexibility wisely to avoid a conflict with Congress, the report recommends.
Michael Livermore, executive director of IPI, wrote on Grist.org that the EPA’s top priority should be to meet its legal obligations while giving Congress enough breathing room to legislate. "By moving forward with smart regulation, it will add pressure on Congress that may finally be enough to overcome its inertia."
If Congress does not act, President Obama could create a cap-and-trade system on his own, complete with auctions and the ability to sign an international agreement. “This means that if the Senate refuses to agree to meaningful action on climate change, there is another option available,” Livermore wrote. “Obviously this is not ideal—legislation would provide a better democratic ‘stamp’ and help ensure the longevity of the policy. But at the end of the day, with climate tipping points breathing down our neck, and the Copenhagen summit looming large, it is good to know that our President could pull the trigger."
Livermore and Richard Revesz, Dean and Lawrence King Professor of Law and IPI's faculty director, are coauthors of Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health (Oxford University Press, 2008).