Recently, we wrote skeptically about the legal viability of current efforts to promote Section 115 of the Clean Air Act as a regulatory panacea for climate change. To recap, Section 115 authorizes EPA to require states to limit emissions of “any air pollutant” that may “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country.”
Section 115 advocates (and there are a number of people who see it as the answer to their prayers) claim that this provision would allow EPA—based on climate change impacts in foreign countries—to impose a national CO2 emissions cap and implement a CO2 trading program across all sectors of the U.S. economy.
But at a recent D.C. policy wonk forum, we realized we had totally missed what may be the biggest pitfall in trying to use Section 115. As Catrina Rorke† of the R Street Institute pointed out at the forum, the idea of EPA imposing a U.S. CO2 emissions cap and an economy-wide trading regime justified on impacts to foreign countries would be a PR gift to that noisy section of the political spectrum that opposes anything with foreign connections on principle. Recall the U.N. Law of the Sea treaty: concluded in 1982, approved by the Senate Foreign Relations Committee 19-0, and backed by everyone from the Chamber of Commerce to the Sierra Club, but never brought to the floor of the Senate. Why? Because there are a significant number of commentators and legislators (and in some cases, their voters, it must be said), who believe that it is part of an internationalist / U.N. conspiracy to curtail American sovereignty.
Now imagine an Administration justifying what could easily be the most expensive and far-reaching federal regulatory program in history, solely on the basis of the alleged (as critics would say) overseas impact of emissions from the U.S. economy. The black helicopter crowd’s worst fears will be confirmed, and the resulting backlash would not only derail any possibility of bipartisan climate efforts, but could also seriously undermine the growing popular consensus that the United States must work towards reducing its carbon emissions. And all for a regulatory program framework built on legal quicksand.
The Clean Power Plan already uses the global Social Cost of Carbon in its cost-benefit analysis—as opposed to the SCC based on strictly U.S. climate damages—which means EPA is already justifying CO2 regulation based in part on benefits that will accrue to other countries. Opponents have noticed and that argument is already part of their narrative against climate action. A Section 115 push would certainly add fuel to that rhetorical fire.
†Kudos to Catrina, who gave us permission to cite her in this piece.