National Tribal Air Association

Seizing upon the current economic situation facing the nation, Senator Lisa Murkowski (R-AK) has put forth a resolution that would prevent the U.S. Environmental Protection Agency (EPA) from regulating greenhouse gas (GHG) emissions under the Clean Air Act. This comes at a time when Congress is more focused on health care and job creation, and less on passing comprehensive climate and energy legislation. The Murkowski resolution could therefore remove the CAA from the hands of EPA, with the Act being the only other viable tool beyond legislation for producing significant GHG emission reductions.

Murkowski’s Resolution of Disapproval (S.J. Res. 26) is also not without substantial support, having 36 Republican and 3 Democrat co-sponsors. It is enabled by the Congressional Review Act which allows Congress to effectively veto agency actions using expedited procedures that only require a simple majority vote in the Senate and House, and the President’s signature. In addition, the resolution is not subject to any amendments or a filibuster on the congressional floor. It’s unlikely, however, that President Obama would provide his signature, but with Murkowski’s effort gaining momentum in Congress, the President may have to reevaluate his position.

Background on EPA’s Ability to Regulate Greenhouse Gases

In Massachusetts v. EPA, [1] the U. S. Supreme Court held that the EPA has the authority to regulate GHG tailpipe emissions from motor vehicles. The Agency must also do so if it finds that these emissions “cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare.” In other words, the EPA must determine if the science warrants an “endangerment finding” for GHG emissions, a formal ruling that finds these pollutants threaten human health and/or the environment. If such a finding is made, the Agency becomes obligated to mitigate any threat by reducing such pollutants from GHG-emitting sources.

On December 7, 2009, the Agency made such a finding under section 202(a) of the CAA, a finding based on an extensive body of peer-reviewed science holding that elevated levels of GHG emissions are the result of human activity that endanger “the public health and welfare of current and future generations.”[2] Furthermore, “without substantial and near-term efforts to significantly reduce emissions,” the accumulation of these GHG emissions will continue and “lead to ever greater rates of climate change.” Murkowski’s resolution would overturn this scientific finding made on the part of EPA.[3]

EPA’s Attempt to “Tailor” GHG Regulatory Costs

Barring passage of Murkowski’s resolution which would essentially block all EPA actions to regulate GHG emissions under the CAA, the Agency plans to finalize a rule by the end of March establishing motor vehicle standards as they apply to GHG emissions. As a result, the EPA would be required to develop additional regulations for GHG emissions under the CAA’s Prevention of Significant Deterioration (PSD) and Title V operating permit mandates for stationary sources – i.e., stationary sources emitting 100- and 250-tons per year (TPY) of GHGs, and the kind of sources found in so many tribal communities. Regulating GHG emissions using these TPY thresholds would lead to enormous administrative and economic burdens for such sources to comply with new regulations along with the governmental jurisdictions tasked with enforcing these regulations (e.g., EPA, states and tribes).

To help overcome these burdens, the EPA introduced a “tailoring rule” last October that would take a significant step towards regulating and reducing GHG emissions by enabling workable implementation of the Act’s PSD and Title V operating permit mandates for stationary sources. Specifically, the Agency would adjust the GHG emissions thresholds to 25,000 TPY,[4] thereby placing emission limits on only very large polluters. More than 400,000 comments were received by the EPA concerning the rule with a set of comments also submitted by the National Tribal Air Association (NTAA). In addition to agreeing with the scope of the rule and its amended threshold scheme, the NTAA also called for a sufficient increase in the amount of resources available to Indian tribes and Alaska Native villages to effectively participate in the proposed regulatory regime for GHG emissions. Like the aforementioned vehicle standards, the Agency expects to finalize the tailoring rule this March, that’s if Murkowski’s resolution doesn’t derail EPA efforts.

Other Efforts to Prevent Regulation of GHGs under the CAA

While the Murkowski resolution has received a lot of press coverage, the same cannot be said of the House of Representatives in which a number of efforts comparable to those of Murkowski are taking place. In addition, a series of legal challenges have been initiated against the EPA.

Within the House, a resolution of disapproval has been introduced and is sponsored by Representatives Marsha Blackburn (R-TN) and Jerry Moran (R-KS). Like its Murkowski counterpart, H.J.Res 66 would overturn EPA’s endangerment finding that GHG emissions threaten human health and the environment, and also prevent regulation of these emissions under the CAA. Bills have also been introduced by Representatives Blackburn (H.R. 391), Earl Pomeroy (D-ND; H.R. 4396), and Ike Skelton (D-MO; H.R. 4572) on the same matter. It is the Skelton bill that is most interesting as it goes even further by preventing the Agency from incorporating the best science on the carbon footprint of biofuels, and also eliminates all natural resource and wildlife protections for biomass feedstocks.

On a separate front, 16 court challenges have been filed against the EPA in the U.S. Circuit Court of Appeals with each one seeking a review of the Agency’s endangerment finding concerning GHG emissions. Most of these lawsuits allege that the science used to make the endangerment finding is flawed, and that forthcoming Agency regulations intended to address GHG emissions will have dire consequences to the nation’s economy.

Why Indian Tribes Should Be Concerned

Enabling the EPA to regulate GHG emissions under the CAA serves to fill a legislative void for doing so. The National Tribal Environmental Council (NTEC) and other tribal organizations have worked closely with Senate and House members to help craft comprehensive climate and energy legislation that addresses the adverse impacts of climate change facing Indian tribes and Alaska Native villages as a result of increasing GHG emissions. Some of these impacts are not unlike those being faced by other governmental jurisdictions such as increasing temperatures, rising sea levels, heightened drought conditions, and extended wildfire seasons. Indian tribes and Alaska Native villages, however, are additionally affected as many of their cultures and identities are integrated into the ecosystems of North America. As climate change disrupts biological communities, the survival of some tribes and villages as distinct cultures may be at risk. The loss of traditional cultural practices, because important plants and animals are no longer available, may prove to be too much for some tribal cultures to withstand on top of the external pressures that they have faced during recent generations.

Therefore, until legislation is forthcoming that is enacted by Congress and the President which addresses the needs and concerns of Indian tribes and Alaska Native villages, the CAA remains as the most viable tool for the EPA to use in reducing GHG emissions, and ultimately stemming the adverse impacts of climate change. NTEC recently made this position known to a number of Senators in a letter that was drafted on behalf of its member tribes. It is a position that tribes should learn more about and discern what a world without CAA regulations or federal legislation to address GHG emissions impacting their communities might look like. It is also a world not too far from reality.