When your house is burning down, you don’t debate whether grabbing a fire extinguisher is better than calling 911 or vice versa. You do both, and if you can, you drag out the garden hose too.

Our global house is on fire. Congress and the president have answered the alarm by proposing a package of incentives that they hope will spur construction of a fire engine that will hold only a fraction of the water necessary to put the fire out. In exchange for these incentives, some in Congress want to shut down most of the existing fire department. And we in the environmental community — the house we all love going up in flames around us — are expected to act as if this is a good thing.

David is right: keeping the fire department (i.e., regulatory authority under the existing Clean Air Act) as a backup would be best. But he nonetheless concludes that adopting the incentives (i.e., the American Power Act) is “overwhelmingly” worth doing, even if the fire department gets closed down as a result. With respect, I think this is where he’s wrong — and here’s why.

David essentially dismisses the idea that we should strenuously advocate for the best option: a bill that reduces carbon emissions, in accordance with scientifically defensible targets, while preserving existing environmental protections. This creates a catch-22: if we abandon our best option at the outset, we guarantee that it will be politically impossible to achieve. Put another way, if we assume right out of the gate that the correct outcome is too politically unrealistic to bother fighting for, we have already conceded the most important fight of all.

I also part company with David’s analysis of what the APA does to the Clean Air Act. With respect to greenhouse gases — and potentially even old-fashioned toxic pollutants from those dirty, wheezing, old coal plants — it’s more than fair to say that the APA “guts” the Clean Air Act. So let’s get into the real “nerdy” details-starting with “performance standards” for those old coal-fired power plants.

The APA eliminates new source performance standards — an emissions “bottom line” — for greenhouse gases

The Clean Air Act’s new source performance standards program allows state and federal authorities to set minimum emissions standards for particular classes of industrial polluters, such as industrial boilers, pulp and paper manufacturers, and chemical plants. Where so-called “criteria” pollutants are concerned-those for which EPA already has established national ambient air quality standards, like lead, ozone, and sulfur dioxide-the performance standards program applies only to new sources. For non-criteria pollutants, however, the Clean Air Act requires performance standards for existing sources as well.[1]

As David acknowledges in his updated analysis, the APA doesn’t “give” EPA authority to establish greenhouse gas performance standards (essentially minimum emissions standards that an entire industry sector must meet) for existing coal plants. EPA and the states already have that authority under Clean Air Act section 111(d). In fact, the Clean Air Act requires greenhouse gas performance standards not only for old coal plants, but also for any other class of industrial sources whose emissions are endangering the climate. So what the APA really does is take away the possibility of performance standards for everything but older coal plants.[2] If the APA leaves an “Easter egg,” it does so only by emptying the rest of the Easter basket.

That Easter egg also might turn out to be hollow — or worse, rotten. The APA already creates a host of regulatory and financial incentives designed to increase efficiency and reduce greenhouse gas emissions at existing coal plants, and it isn’t clear what more performance standards would do. Much more troubling is the possibility that dirty old coal plants could get a free pass from other pollution control requirements — and thus get even dirtier — in exchange for a promise to close down someday.[3]

Losing authority to impose performance standards on polluters outside the APA’s cap and trade program also has serious consequences. Regulation of these sources — many of which emit high-potency greenhouse gases like methane and refrigerants — could provide dramatic, cost-effective emissions reductions in the very near term. Yet the APA precludes regulation of greenhouse pollution from these sources under any federal law, at least for the next decade, and instead treats emissions reductions from these sectors as offsets that can be purchased by capped entities.[4] So, instead of retaining EPA’s power to reduce emissions from these sectors, the APA renders any reductions voluntary — and then allows them to be cancelled out by emissions from capped entities. Thus a whole decade’s worth of relatively cheap, efficient emissions reductions could go right up someone else’s smokestack.

I agree with David that losing the authority to prescribe new source performance standards for greenhouse gases is a bad thing. And this is only one of the many powerful tools we’ll lose if the APA passes as written.

The APA forecloses National Ambient Air Quality Standards — a nationwide pollution cap

The APA also eliminates the Clean Air Act’s ability to set a scientifically based national pollution cap on greenhouse gases. We already know what that level should be: scientists tell us that we have to reduce carbon dioxide concentrations in the atmosphere to 350 parts per million (ppm) or less in order to have a good chance of avoiding the worst impacts of global warming.

The power of a national standard is twofold. First, the Clean Air Act requires that the cap or standard has to be grounded in current science. Physical reality, not political reality, must drive the program. Second, a national standard would unleash the full, coordinated power of federal and state governments under the Clean Air Act (a collaboration often called “cooperative federalism”). State and federal authorities would have to develop coordinated plans, covering all sectors of the economy, plotting a course for the United States to do its part in getting to 350. This is a global problem, so we can’t do it alone — but at least we’d be guided by emissions reduction targets dictated by the science, rather than the demands of a few recalcitrant senators from the coal and oil states. Losing sight of the science — and the legal requirement that we act in accordance with it — would be a major loss indeed.

Critics of the pollution cap idea have raised a number of objections, beginning with the fact that it would raise new implementation issues. These are presented by critics as daunting obstacles, but in fact none are insurmountable. State-level plans for complying with the cap could be coordinated by EPA so that each state would aim to achieve its fair share of emissions reductions. As David recognizes, moreover, under the existing Clean Air Act individual states wouldn’t necessarily be punished for failing to “attain” the standard if emissions from the rest of the world continue to make it impossible. A national cap based on the United States’ fair share of global emissions reductions, coupled with state-level plans to achieve those reductions, also could function quite well within any future international climate change agreement. Of course there are hard political choices and difficult questions of international climate justice that we’ll have to face — but we’ll have to face them anyway.

Critics also point out that declaring greenhouse gases to be “criteria” pollutants would limit the ability of EPA and the states to develop performance standards for existing sources of greenhouse pollution. Of course, the APA would mostly accomplish the same thing — which many of these critics oddly don’t seem to mind. They also raise the specter of years of litigation against any pollution cap. But much of the APA also depends on as-yet-undrafted regulations. Industry will certainly drag those regulations through the courts if they’re any good — just as we’ll have to challenge them ourselves if they’re bad. The specter of a Palin Administration cuts both ways here.

Perhaps the most unfortunate argument against the national cap is the one David offers in his post. It goes like this: establishing a national standard for greenhouse gas concentrations would be really ambitious and potentially very powerful — so powerful, in fact, that Congress might try to take away EPA’s authority to do it. So, we might as well let Congress take away that authority now. It’s a variation on the same defeatist theme that has us constantly negotiating against (and often fighting amongst) ourselves: if we use the tools, they might take them away, so we shouldn’t use the tools. But this is just a way of guaranteeing that our worst-case scenario occurs — the only differences being that we’ve defeated ourselves, and that we’ve given up without a fight. We deserve better from one another — and our planet deserves far better from us.

The APA scraps new source review and other Clean Air Act programs

The APA doesn’t stop with eliminating new source performance standards and ambient air quality limitations. The bill also wipes out Clean Air Act authority to require permits for individual sources of greenhouse gases under the new source review and Title V programs — permits that otherwise could require those sources to adopt the best available technology for controlling their emissions. EPA also would lose the power to regulate greenhouse gases as hazardous pollutants (which, admittedly, they would never use so long as greenhouse gas emissions are designated as criteria air pollutants) and the authority to address the international dangers of domestic greenhouse emissions (which other countries, already suspicious of U.S. climate intransigence, might kind of resent). The bill even goes out of its way to bar the government from addressing ocean acidification under most Clean Air Act programs.

As for regulation of so-called “mobile” sources like vehicles, ships, and airplanes, David states that the APA leaves this portion of the Clean Air Act “untouched.” That isn’t quite true; the bill creates new exemptions from greenhouse standards for certain heavy-duty vehicles and engines, and grants EPA broad discretion to delay implementing those standards where they still apply. The APA also authorizes an ill-defined “emissions credit” trading program among a wide range of mobile sources.

So what’s left of the Clean Air Act as we now know it? New source performance standards for old coal plants. Explicit authority to adopt one more round of fuel economy standards for passenger cars and trucks. Power to regulate other mobile sources, subject to various exceptions and exemptions. And that’s about it, at least for the next 10 years. We shouldn’t be trying to convince ourselves or each other that these few crumbs are really half a loaf. If we’re honest, we have to admit that the APA really does gut the Clean Air Act, at least as far as global warming pollution is concerned.

The real question on the table, of course, is whether it’s worth it. David seems to think so. But his posts barely mention the bill’s shamefully inadequate emissions targets, its incentives for expanded offshore drilling, its “Hail Mary” subsidies for carbon capture and sequestration in order to continue building new coal-fired power plants, and its promotion of a new generation of nuclear facilities, even though we still lack solutions to the known risks, long-lasting impacts, and extreme cost of nuclear energy relative to other cleaner energy sources.

Given all this, I can’t agree that it’s a good idea to dismantle the fire department in exchange for a bunch of untested incentives for new fire engine construction — especially when we already know that the fire engine won’t be up to the task. By the time we’re finally ready to fight this fire, if that day ever comes, our house will be long gone. That’s why I firmly believe that whatever new climate legislation does — whether it’s encouraging efficiency, creating incentives for cleaner energy and transportation, setting a price on carbon, or some combination — it must backed up by the solid, proven, science-based programs that EPA has successfully implemented under the Clean Air Act for the last 40 years.

In the midst of a crisis, we have to be honest with one another. We can’t afford to kid ourselves about what we’re gaining and what we’re giving up. So go ahead and build that new fire engine — but let’s make sure someone is still there to answer when we dial 911.


[1] Clean Air Act § 111(d).

[2] The APA permanently prohibits EPA from establishing performance standards for sources subject to the bill’s cap and trade program and defers any performance standards for sources outside the cap until 2020. APA § 2302 (adding Clean Air Act § 111(k)(2), (3)).

[3] Section 1441 of the APA, adding section 802 to the Clean Air Act, establishes a “task force” to consider, among other things, granting exemptions from new source performance standards, hazardous pollutant requirements, and new source review permits for certain modifications to existing power plants that promise to shut down within an as-yet-unspecified period of time.

[4] See APA §§ 2001 (proposed Clean Air Act §§ 733(a)(1)(A), 742(c)), 2302 (proposed Clean Air Act § 111(k)(3)).