Senator Murkowski wants to overturn the Environmental Protection Agency’s scientific finding that global warming pollution is dangerous to Americans’ health and to their environment.  She introduced a “resolution of disapproval” that, if passed by both houses of Congress and signed by the president, would void the Supreme Court’s landmark 2007 global warming decision and prohibit using the Clean Air Act to cut the carbon pollution that endangers our health and our environment.    

The Clean Air Act has protected Americans from dangerous air pollution for 40 years.  It has saved hundreds of thousands of lives, and it has protected our lakes, forests, national parks, and other natural treasures from untold damage.  Now we’re relying on this landmark law to help protect our health and natural resources from global warming. 

Using the Clean Air Act to protect us from global warming requires nothing different than what we’ve done for other kinds of pollution over the last four decades:  Follow the science, act when pollution endangers our health and welfare, and use available and affordable emission controls to clean up the largest pollution sources – vehicles, power plants, and big factories.  It’s practical, effective, and affordable. 

Here are seven major mistakes Senator Murkowski makes about the Clean Air Act and global warming.

Mistake #1:  The disapproval resolution “has nothing to do with the science of global climate change.”

That’s just wrong.  The resolution of disapproval directly overturns EPA’s science-based finding that global warming pollution is dangerous to Americans’ health and to their environment.  This is like Congress vetoing the Surgeon-General’s report that smoking causes lung cancer.  Congress told EPA to put science at the heart of the regulatory process.  Sen. Murkowski’s resolution asks Senators to deny that science should drive clean air regulation. 

Mistake #2:  “The Clean Air Act was written by Congress to regulate criteria pollutants, not greenhouse gases.”

That’s also wrong.  The Supreme Court held in Massachusetts v. EPA that the Clean Air Act unambiguously covers all kinds of air pollutants, including greenhouse gases: 

The Clean Air Act's sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air ... .” § 7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical ... substance[s] which [are] emitted into ... the ambient air.” The statute is unambiguous.

The Supreme Court went on to say: 

If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles.

That’s the scientific finding that EPA Administrator Lisa Jackson made in December, based on all the peer-reviewed evidence and hundreds of thousands of public comments.

Mistake #3:  Senator Murkowski says she doesn’t want to block federal clean car standards, but that’s what her resolution would do. 

In a Rose Garden ceremony last May, President Obama announced an historic agreement on national clean car standards, a clean car peace treaty bringing together the auto companies, labor, states, and environmentalists.  Those standards will cut vehicles’ carbon pollution by 30 percent, save consumers billions at the gas pump, sharply reduce our dependence on foreign oil, and help the American auto industry rebuild by making cars and trucks that make sense for the 21st century.  

Senator Murkowski has said before that she does not want to block these clean car standards.  But that is exactly what her resolution would do.  By overturning the endangerment finding, the resolution directly prohibits EPA from setting those standards.

If the resolution passes, the auto companies will lose the benefits of national emission standards.  They will have to meet state clean car standards in California and at least 13 other states.  That’s why the Alliance of Automobile Manufacturers and the United Auto Workers opposed the senator’s first anti-Clean Air Act proposal last September.

No wonder Senator Murkowski was silent about clean cars when introducing her resolution last week.  She knows what it would do to the clean car agreement, and she knows that makes no sense.

Mistake #4:  Contrary to Senator Murkowski, the Clean Air Act will not cover hotels, hospitals, and other small sources. 

EPA is carefully limiting carbon controls to big power plants and industrial facilities – the same big sources that have long been subject to the Clean Air Act for other dangerous pollutants – and has no intention to put carbon controls on small sources.  Yet Senator Murkowski perpetuates the myth that hotels, hospitals, homes, and other small sources are in the cross-hairs. 

For decades the Clean Air Act has had a “new source review” program to ensure that the largest new and expanded power plants and factories use modern technology to limit their dangerous emissions.  A company that just keeps using its existing facilities is not affected, nor is any expansion project that does not increase emissions.  But it’s just common sense to make sure that when a company builds a new or expanded facility that will increase pollution, it should use modern technology to keep the emissions rise as small as reasonably possible. 

Last September EPA proposed to tailor its existing rules to make sure that only the biggest pollution-increasing sources – ones like those already covered for conventional pollutants – will need new source review permits for greenhouse gases.  EPA asked for public comment on a threshold of 25,000 tons per year of greenhouse gases – 100 times higher than the threshold for other pollutants.  This reflects the fact that much more carbon dioxide is emitted than other pollutants. 

The public comments show that no one wants small sources to come under the permitting rules.  Environmental organizations support the tailoring rule and its focus on the big power plants and industrial facilities like those long covered for other pollutants.  Many industries and states suggested that a higher threshold number – some suggested 50,000 or 100,000 tons – is needed to accomplish this goal.  And so EPA may well include a higher emissions threshold in the final rules, with broad support from all sides.

Senator Murkowski conjures up a crisis starting at the end of March, when EPA is expected to issue the clean car standards.  But nothing dramatic is likely to happen then.  Many states told EPA that they will need time to change their own laws and regulations to adopt the final emissions threshold, and EPA is very likely to allow them more time in order to assure a smooth and workable transition. 

Mistake #5:  Contrary to the senator, the courts are unlikely to force EPA to cover small sources.

Senator Murkowski says: “When the final rule is issued, it will be challenged.  I expect the courts will then reject it.”  But who is going to challenge the exemption of small sources?  Not environmental organizations – they support the rule.  Not small businesses – why would they challenge a rule that doesn’t cover them? 

So that leaves companies and trade associations representing the big new sources that will have to use modern pollution controls for greenhouse gases, just as they already do for other pollutants.  Will they sue because small sources are not covered?  What court will listen to big sources make that complaint?

In any event, EPA is relying on established legal doctrines.  For instance, courts recognize situations of administrative necessity – in this case, that permitting agencies simply cannot handle the workload without the change in the emissions threshold that excludes small sources.  On these facts, what court will order EPA to cover small sources?

Mistake #6:  Senator Murkowski’s “Lower 48” examples are power plants that broke today’s rules for conventional pollutants, not greenhouse gases.

Senator Murkowski claims power plants and industries in the Lower 48 will face a “heavy economic burden” if new source permitting covers greenhouse gases.  But the three examples she gives – proposed new power plants in New Mexico, Kentucky, and Arkansas – are completely off-target. 

First, these permits don’t involve greenhouse gases at all – they’re about conventional pollutants, like sulfur dioxide, particulates, and nitrogen oxide, that have been covered for decades.    

Second, in each of these cases the state permitting agency failed to follow the long-established rules of the road.  The state is supposed to set an emission limit based the “best available control technology” by considering the feasibility and cost of all control options, and eliminating those it finds aren’t technically feasible or are too costly.  The states didn’t do that in these cases. 

• In two instances, the states approved pulverized coal plants without evaluating the feasibility or cost of using Integrated Gasification Combined Cycle (“IGCC”), a coal-based power generation technology that would significantly reduce emissions of SO2, NOx, fine particles, and mercury. 
• In the third case, the state had failed to consider emission controls for dangerous fine particle emissions.  

Now the permit applicants and the state agencies have to correct their errors by considering the control measures they previously ignored.  The states still have the option to reject those measures if the permitting agencies find them infeasible or too costly.  But it is only fair to follow the rules, look at the full range of options, and accept or reject them after due consideration.

Thus, each of these decisions strikes a reasonable balance to ensure that public health is protected while economic growth occurs.  And they have nothing to do with greenhouse gases.

Mistake #7: Contrary to Senator Murkowski, the Clean Air Act will not block construction or operation of Alaskan pipelines and oil refineries.

Senator Murkowski’s most sweeping charges relate to her own state.  EPA’s regulations, she says, “will hit my home state’s energy sector particularly hard.  The continued operation of existing businesses and future endeavors alike – including Alaska’s three refineries, the Trans-Alaska Pipeline System, or TAPS, and the proposed Alaska Natural Gas Pipeline – will all be jeopardized.”  None of this is true.

Exhibit number 1 is the Flint Hills oil refinery near Fairbanks, which she says “struggles to keep its jet fuel output at competitive rates” and “faces a relatively inelastic market in Alaska for its other fuel products.”  Senator Murkowski then says:  “The EPA will likely be unable, and in any event unwilling, to address these issues.” 

There are four reasons why her conclusion is wrong. 

• First, Flint Hills’ current operations aren’t affected, because refineries, power plants, and other facilities don’t need new source permits to continue their current operations. 
• Second, if Flint Hills wants to expand its output of jet fuel or other products, it won’t need a new source permit for greenhouse gases unless pollution levels are going to go up.  Many refinery improvements – de-bottlenecking and efficiency projects, for example – increase output without increasing emissions, and these will be unaffected.
• Third, if the Flint Hills refinery, or any other company, proposes a new plant or an expansion project that will increase emissions, it’s very likely to need a new source permit anyway under the longstanding rules for conventional pollutants like hydrocarbons or NOx. 
• Finally, just as for any other pollutant, if measures to cut the greenhouse gas emissions of a new plant or an expansion project are not available or are too costly, the permitting agency will not have to require them.  All the Clean Air Act requires is control measures that are feasible and affordable. 

So much for the threat to Flint Hills or other plants.  Now let’s look at Senator Murkowski’s claim that construction and operation of the proposed Alaska Natural Gas Pipeline would be “significantly hobbled by the EPA.”  The reason, she says, is that “[t]here is no known best available control technology” for reducing CO2 emissions from the pipeline’s compressor stations.

If the senator were correct that there are no control options for the new pipeline’s compressor stations, then no controls would be required.  Once again, if the permitting agency concludes, after considering the options, that CO2-reducing measures are infeasible or too costly, then none will be imposed. 

But in fact there are good options for reducing compressor stations’ CO2 emissions, such as by capturing wasted energy for electricity generation.  According to Chairman Jon Wellinghoff of the Federal Energy Regulatory Commission (hats off to Dave Roberts for noting this):  

FERC has begun moving down the path of wringing every ounce of efficiency out of the interstate pipeline system. For example, it has been estimated that between 10 and 15 gigawatts of energy could be recovered from our natural gas pipeline system through electricity generation from waste heat recovery at compressor stations and pressure recovery at pressure let-down points. There are at least 12 projects in North America at which four interstate pipeline companies are, or will be, providing compressor engine waste heat for the generation of electricity.

These are reasonable measures at least to consider in the permitting process for the new natural gas pipeline.  If there is some reason they won’t work in Alaska, they won’t be required.

Everything Senator Murkowski says about the economic importance of these refineries and pipelines is true.  But none of that is imperiled by the Clean Air Act.  All that it requires in Alaska, and in the rest of the country, is that we build and operate our energy facilities with available and affordable measures to cut the pollution that threatens our health and environment. 

* * *

The Clean Air Act has produced enormous public health and environmental benefits for 40 years.  Let’s not stop it now.

And let’s not use mistaken claims about the Clean Air Act as an excuse for delay on comprehensive energy and climate legislation.  Senator Murkowski says she wants such legislation, but she has rejected every climate bill put forward in this Congress and offered nothing of her own except to attack the only effective tool already in place. 

Instead of moving backwards, Senator Murkowski should roll up her sleeves and join the bipartisan efforts now underway to craft a comprehensive bill that creates jobs, reduces dependence on foreign oil, and cuts the carbon pollution that threatens Americans’ health and welfare.

GM 

General Motors' plan, which asks for $22.5 to 30 billion dollars in federal loans, had this to say about emissions and fuel economy standards (pp.21-22): 

[T]he Company has complied with Federal fuel economy rules since their inception in 1978, and is fully committed to meeting the requirements in the 2007 Energy Independence and Security Act (which specifies the 2020 fuel economy requirement). Going forward, the Company will work closely with the Administration on future requirements, and work to meet them in the most cost effective way. Compliance with other regulatory schemes, including the California CO2 program, will be addressed as any such programs are finalized. General Motors will work with the Administration, and others, to develop any changes needed to the Company's product and financial plans to meet such additional requirements.

The last two sentences are intriguing.  In place of GM's former just-say-no stance on California's global warming emission standards, now the company pledges that compliance with those standards "will be addressed as any such programs are finalized."  And the company pledged to "work with the Administration, and others" (Who could that be?  California?  Environmental organizations?) "to develop any changes needed to the Company's product and financial plans to meet such additional requirements." 

The Wall Street Journal characterized the company's new tone this way:  "General Motors: Maybe We Can Live With California Emission Rules."  The Journal said that GM "appears to have softened resistance to government fuel-economy standards" and "hinted it might be open to California regulating auto emissions after all."   

We'll have to see about that.  In a subsequent conversation with NRDC, GM's chief Rick Waggoner reiterated his desire for a single national standard, but said the $64,000 question is what that would be.  As I reported, an analysis of automakers' previous restructuring plans, prepared by my colleague Roland Hwang, found that the companies are now positioned to comply with California's standards if they were extended to apply nationwide.  GM's officials quibble with that conclusion, but say they want to talk.  We'll keep pressing. 

Chrysler 

Chrysler's plan, which seeks another $5 billion in loans, also seems to have softened the company's stance against to the California standards - at least in tone.  Chrysler's report says this (p.116): 

• California and thirteen other states have adopted greenhouse gas vehicle emissions standards ("AB 1493 standards") that require increases in fuel economy. These states comprise about 50% of the domestic car market.
• If the US Environmental Protection Agency allows these states to enforce the AB 1493 standards, Chrysler will try its best to comply using available technology, however as a last resort it may be necessary to restrict sales of certain vehicle models in those states. The ultimate effect of the California standards on Chrysler's product plans depends on a number of developments, as indicated in the Appendix.

Chrysler now says that if EPA approves the California waiver, it will "try its best to comply using available technology."  The company does say that "as a last resort it may be necessary to restrict sales of certain vehicle models in those states," but this is a step back from Chrysler's shrill claims of doom and gloom two years ago, in the auto industry's unsuccessful lawsuits to block the California standards.  

There's more to explore with Chrysler too.  The last sentence mentions an appendix that explores "a number of developments" that will shape the effect on Chrysler's product plans, but that appendix was not made public.  We'd like to know what it says.

So, do the plans show some movement?  Maybe.  As I told the Wall Street Journal:  "If you have your hand out for federal dollars, it is harder to thumb your nose at these requirements as they used to."  But we still need to see if the movement is real. 

The solution is in still their hands.  All they have to do is agree to meet standards that deliver emissions and fuel economy at least equal to applying California's standards nationwide.

The loans were provided to enable the companies "to develop a viable and competitive business that minimizes adverse effects on the environment" (see p. 1 of the GM loan agreement, for example).  There's been a lot of attention, and rightly so, to the steps they'll take to reduce costs, discontinue certain brands, and adjust their market shares.  But the loan agreements also require the companies to show in their restructuring plans how they will "comply with applicable federal fuel efficiency and emissions requirements" (GM agreement, p. 54).

The handwriting is on the wall that the "applicable federal fuel efficiency and emissions requirements" are likely to become stronger, and soon. 

As I described here, on January 26th President Obama put the nation on a new path towards cleaner, more efficient cars by directing his agencies to review two key Bush administration decisions on auto standards.  As a result, the Environmental Protection Agency is likely to give California the green light - denied under the Bush administration - to enforce its landmark greenhouse gas emission standards for new cars and light trucks.  And the Department of Transportation is expected to strengthen the lax fuel economy standards proposed during the previous administration. 

Expectations for higher emissions and fuel economy standards have been rising in Congress as well.  As Speaker Nancy Pelosi and House Financial Services Committee Chairman Barney Frank wrote in a February 13th letter to GM and Chrysler, their restructuring plans need to include:

A demonstration of your ability to achieve or exceed the fuel efficiency requirements set forth in the Energy Independence and Security Act of 2007, and the emissions standards adopted by California and other states, if they receive Federal approval, and become a long-term global leader in the production of fuel-efficient and advanced technology vehicles.

Meeting the California standards is well within the companies' reach.  An analysis of GM's and Ford's plans submitted to Congress last November, prepared by my colleague Roland Hwang, shows that they are now positioned to comply with California's greenhouse gas standards if they were extended to apply nationwide.

GM's and Chrysler's new reports are likely to complain again about a "patchwork" of environmental standards.  They will say they want uniform national standards. 

A nationally uniform solution is in their hands.  All they have to do is agree to meet federal emission and mileage standards that deliver performance at least equal to applying California's standards nationwide.  Let's see if that is in their reports.