(If) Things Fall Apart: Searching for Optimal Regulatory Solutions to Combating Climate Change under Title I of the Existing Clean Air Act if Congressional Action Fails

Timothy J. Mullins
M. Rhead Enion, Duke University

Abstract

The prospects for a Congressional climate change bill have lessened since the Copenhagen summit. If the legislative process fails, EPA may have a number of options available under the existing Clean Air Act to create a cap-and-trade program that could, in many ways, mimic a Congressionally-created regime. Under Title I in particular, EPA could have this type of authority under the NAAQS program (§§ 107–110) or the New Source Performance Standards and existing source regulation (§ 111(b) and (d)). This Article analyzes the potential of both of these sections and their associated regulatory programs to create a large-scale cap-and-trade program that can best incorporate the features of the programs currently being discussed in Congress. The Article will focus on the various legal constraints imposed upon these different statutory hooks and will attempt to present the issues as objectively as possible. The Article will conclude with an examination of the interplay between these regulations and suggest that EPA may need to move in an incremental fashion given the uncertain statutory authority and legislative process. As a general matter, the statutory authority for all of the programs discussed is uncertain, but all are at least theoretically possible under the current Act.