[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
IS CO2 A POLLUTANT AND DOES EPA HAVE THE POWER TO REGULATE
IT?
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES, AND REGULATORY AFFAIRS
of the
COMMITTEE ON GOVERNMENT REFORM
and the
SUBCOMMITTEE ON ENERGY AND EVIRONMENT
of the
COMMITTEE ON SCIENCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
OCTOBER 6, 1999
__________
Committee on Government Reform
Serial No. 106-89
Committee on Science
Serial No. 106-66
__________
Printed for the use of the Committee on Government Reform and the
Committee on Science
Available via the World Wide Web: http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
62-900 CC WASHINGTON : 2000
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Carla J. Martin, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on National Economic Growth, Natural Resources, and
Regulatory Affairs
DAVID M. McINTOSH, Indiana, Chairman
PAUL RYAN, Wisconsin DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia TOM LANTOS, California
LEE TERRY, Nebraska PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon BERNARD SANDERS, Vermont
HELEN CHENOWETH, Idaho HAROLD E. FORD, Jr., Tennessee
DAVID VITTER, Louisiana
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Marlo Lewis, Jr., Staff Director
Barbara F. Kahlow, Professional Staff Member
Gabriel Neil Rubin, Clerk
Elizabeth Mundinger, Minority Counsel
COMMITTEE ON SCIENCE
HON. F. JAMES SENSENBRENNER, Jr., (R-Wisconsin), Chairman
SHERWOOD L. BOEHLERT, New York RALPH M. HALL, Texas, RMM**
LAMAR SMITH, Texas BART GORDON, Tennessee
CONSTANCE A. MORELLA, Maryland JERRY F. COSTELLO, Illinois
CURT WELDON, Pennsylvania JAMES A. BARCIA, Michigan
DANA ROHRABACHER, California EDDIE BERNICE JOHNSON, Texas
JOE BARTON, Texas LYNN C. WOOLSEY, California
KEN CALVERT, California LYNN N. RIVERS, Michigan
NICK SMITH, Michigan ZOE LOFGREN, California
ROSCOE G. BARTLETT, Maryland MICHAEL F. DOYLE, Pennsylvania
VERNON J. EHLERS, Michigan* SHEILA JACKSON-LEE, Texas
DAVE WELDON, Florida DEBBIE STABENOW, Michigan
GIL GUTKNECHT, Minnesota BOB ETHERIDGE, North Carolina
THOMAS W. EWING, Illinois NICK LAMPSON, Texas
CHRIS CANNON, Utah JOHN B. LARSON, Connecticut
KEVIN BRADY, Texas MARK UDALL, Colorado
MERRILL COOK, Utah DAVID WU, Oregon
GEORGE R. NETHERCUTT, Jr., ANTHONY D. WEINER, New York
Washington MICHAEL E. CAPUANO, Massachusetts
FRANK D. LUCAS, Oklahoma BRIAN BAIRD, Washington
MARK GREEN, Wisconsin JOSEPH M. HOEFFEL, Pennsylvania
STEVEN T. KUYKENDALL, California DENNIS MOORE, Kansas
GARY G. MILLER, California VACANCY
JUDY BIGGERT, Illinois
MARSHALL ``MARK'' SANFORD, South
Carolina
JACK METCALF, Washington
Subcommittee on Energy and Environment
KEN CALVERT, California, Chairman
CURT WELDON, Pennsylvania JERRY F. COSTELLO, Illinois**
JOE BARTON, Texas MICHAEL F. DOYLE, Pennsylvania
DANA ROHRABACHER, California JAMES A. BARCIA, Michigan
VERNON J. EHLERS, Michigan EDDIE BERNICE JOHNSON, Texas
DAVE WELDON, Florida ZOE LOFGREN, California
GARY MILLER, California* JOSEPH M. HOEFFEL, Pennsylvania
JUDY BIGGERT, Illinois VACANCY
JACK METCALF, Washington RALPH M. HALL, Texas+
F. JAMES SENSENBRENNER, Jr.,
Wisconsin+
C O N T E N T S
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Page
Hearing held on October 6, 1999.................................. 1
Statement of:
Guzy, Gary S., General Counsel, U.S. Environmental Protection
Agency; James Huffman, dean, Lewis and Clark Law School;
Peter Glaser, esq., Shook, Hardy, and Bacon; and Jeffrey G.
Miller, professor of law, Pace University School of Law.... 11
Michaels, Patrick J., professor of environmental sciences,
University of Virginia, and senior fellow in environmental
studies at Cato Institute; Keith E. Idso, vice president,
Center for the Study of Carbon Dioxide and Global Change;
and Christopher B. Field, staff scientist, Carnegie
Institution of Washington, and professor of biological
sciences, Stanford University.............................. 78
Letters, statements, et cetera, submitted for the record by:
Calvert, Hon. Ken, a Representative in Congress from the
State of California:
Letter dated October 5, 1999............................. 65
Prepared statement of.................................... 8
Field, Christopher B., staff scientist, Carnegie Institution
of Washington, and professor of biological sciences,
Stanford University, prepared statement of................. 99
Glaser, Peter, esq., Shook, Hardy, and Bacon, prepared
statement of............................................... 29
Guzy, Gary S., General Counsel, U.S. Environmental Protection
Agency, prepared statement of.............................. 14
Huffman, James, dean, Lewis and Clark Law School, prepared
statement of............................................... 51
Idso, Keith E., vice president, Center for the Study of
Carbon Dioxide and Global Change, prepared statement of.... 106
McIntosh, Hon. David M., a Representative in Congress from
the State of Indiana, prepared statement of................ 4
Michaels, Patrick J., professor of environmental sciences,
University of Virginia, and senior fellow in environmental
studies at Cato Institute, prepared statement of........... 81
Miller, Jeffrey G., professor of law, Pace University School
of Law, prepared statement of.............................. 46
IS CO2 A POLLUTANT AND DOES EPA HAVE THE POWER TO REGULATE
IT?
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WEDNESDAY, OCTOBER 6, 1999
House of Representatives, Subbcommittee on National
Economic Growth, Natural Resources, and
Regulatory Affairs, Committee on Government
Reform, joint with the Subcommittee on Energy
and Environment, Committee on Science,
Washington, DC.
The subcommittees met, pursuant to notice, at 2:39 p.m., in
room 2247, Rayburn House Office Building, Hon. David M.
McIntosh (chairman of the Subcommittee on National Economic
Growth, Natural Resources, and Regulatory Affairs) presiding.
Present from the Subcommittee on National Economic Growth,
Natural Resources, and Regulatory Affairs: Representatives
McIntosh, Barr, and Kucinich.
Present from the Subcommittee on Energy and Environment:
Representatives Calvert, Costello, and Ehlers.
Staff present from the Subcommittee on National Economic
Growth, Natural Resources, and Regulatory Affairs: Marlo Lewis,
Jr., staff director; Barbara F. Kahlow and Joel Bucher,
professional staff members; Jason Hopfer, counsel; Gabriel Neil
Rubin, clerk; Elizabeth Mundinger, minority counsel; and Earley
Green, minority staff assistant.
Staff present from the Subcommittee on Energy and
Environment: Harlan Watson, staff director; Rob Hood and Jean
Fruci, professional staff members; Jeff Donald, staff
assistant; and Marty Ralston, minority staff assistant.
Mr. McIntosh. The subcommittees shall come to order.
First, let me say thank you to my colleague from California
for co-chairing today's hearing. This should be a thought-
provoking and indepth hearing, since we will be examining
questions that go to the heart of the debate about the Kyoto
Protocol and the administration's climate change policies.
These questions are: Is carbon dioxide a pollutant, and does
EPA have the power to regulate it?
The central premise of both the Kyoto Protocol and the
administration's policies is the theory of catastrophic global
warming. According to this theory, the buildup of greenhouse
gases--principally CO2 from fossil fuel combustion--
will enhance the greenhouse effect, warm the Earth's
atmosphere, and, thus, potentially, or even probably, increase
the frequency and severity of extreme weather events,
accelerate sea level rise, and spread tropical diseases.
More simply put, Kyoto proponents contend that
CO2--a clear, odorless gas and the fundamental
nutrient of the planetary food chain--is, in fact, a pollutant.
Administration officials, for example, often say their policies
are needed to combat ``greenhouse pollution.''
The hypothesis that CO2 emissions constitute
greenhouse pollution draws it strongest support from
mathematical simulations of the global climate system, known as
the general circulation models. Now, although impressive in
their complexity, the models repeatedly fail to replicate
current and past climate; and as computing power and modeling
techniques have improved, the amount of projected global
warming has declined. The empirical side of the issue is much
clearer. Hundreds of laboratory and field experiments show that
nearly all trees, crops, and other plants raised in
CO2-enriched environments grow faster, stronger, and
with greater resistance to temperature and pollution stress.
So, to borrow a well-known phrase from the UN's
Intergovernmental Panel on Climate Change, today's hearing will
consider where the ``balance of evidence'' lies. Does the
balance of scientific evidence suggest that CO2
emissions are endangering public health, welfare, and the
environment?
The subcommittee will also examine whether EPA has the
power under the Clean Air Act to regulate CO2. EPA
claims that it does have such authority, most notably in former
EPA General Counsel Jonathan Cannon's April 10, 1998
memorandum, entitled, ``EPA's Authority to Regulate Pollutants
from Electric Power Generation Sources.''
The Cannon memorandum was, and remains, controversial. In
his appearance before our subcommittee, he reasserted that
power to regulate CO2. Regulating CO2 to
curb greenhouse pollution is the sum and substance of the Kyoto
Protocol. So, the Cannon memorandum implies that EPA already
has the power to implement Kyoto-style emission reduction
targets and timetables, as if Congress, when it enacted and
amended the Clean Air Act, tacitly ratified the Kyoto Protocol
in advance.
Several questions spring to mind, which I trust we will
explore today. First, does the Clean Air Act expressly confer
on EPA the power to regulate CO2? On an issue of
longstanding controversy like global warming, is it even
conceivable that Congress would have delegated to EPA the power
to launch a vast new regulatory program, a program potentially
costing hundreds of billions of dollars, without ever saying so
in the text of the statute? The Clean Air Act mentions
CO2 and global warming only in the context of non-
regulatory activities such as research and technology
development. How then can EPA claim that the act clearly and
unambiguously provides the authority to regulate
CO2?
Second, does CO2 fit into any of the regulatory
programs already established under the Clean Air Act? The
Cannon memorandum suggests, for example, that EPA may regulate
CO2 emissions under the National Ambient Air Quality
Standards [NAAQS] program. But that program was designed to
address local air quality problems, not a global phenomenon
like the greenhouse effect. If EPA were to set a NAAQS for
CO2, for example, that is below the current
atmospheric level, the entire United States would be out of
attainment. Every community within the United States would be
out of attainment if that NAAQS standard were adopted. Even if
every factory and power plant were to shut down, this would
continue to be the case because it is a global phenomenon.
Conversely, if EPA were to set a NAAQS standard that is
above the current level, the entire country would be in
attainment, even if CO2 emissions suddenly doubled
in many of our communities. So NAAQS is not a tool well-crafted
to attack the problem of global warming. The attempt to
regulate CO2 through the NAAQS program would appear
to be an absurd and futile exercise. This suggests that
Congress, when it enacted the program, never intended EPA to
regulate CO2.
The third question that I have, does the legislative
history of the Clean Air Act Amendments of 1990 expressly
support or, in fact, contradict EPA's claim of authority to
regulate CO2? Some may argue that Congress'
deliberate rejection of greenhouse gas regulatory provisions in
the 1990 amendments is irrelevant, because declining to mandate
such regulation is not the same as prohibiting it. But this is
tantamount to saying that EPA has whatever authority Congress
does not expressly withhold. That is simply turning the entire
principle of administrative law on its head. Under our system
of government, agencies only have the powers that Congress
specifically delegates to them.
The Clean Air Act is a carefully structured statute with
specific titles that create specific regulatory programs to
accomplish specific objectives. It is not a regulatory blank
check. EPA contends that CO2 falls within the Clean
Air Act's formal or technical definition of ``pollutant`` as a
substance that is ``emitted into or otherwise enters the
ambient air.`` But this hardly suffices to settle the question
of whether Congress designed and intended any of the Clean Air
Act's regulatory programs to encompass CO2.
Before I turn over the proceedings to Chairman Calvert, I
would like to welcome our witnesses. Representing the Clinton
administration on the question of EPA's legal authority is EPA
General Counsel Gary Guzy. Welcome, Mr. Guzy. I appreciate your
willingness to step up to the plate and address these tough
questions. Mr. Peter Glaser, of the law firm of Shook, Hardy,
and Bacon; Professor James Huffman, who is Dean of the Lewis
and Clark Law School; and Professor Jeffrey Miller of Pace
University School of Law will also speak to the question of
EPA's legal authority. Thank you, gentlemen, for participating
in this forum.
I would also like to welcome the members of the scientific
panel: Dr. Patrick Michaels, professor of Environmental
Sciences at the University of Virginia and senior fellow in
Environmental Studies at Cato Institute; Dr. Keith Idso, vice
president of the Center for the Study of Carbon Dioxide and
Global Change; and Dr. Chris Field, who is a staff scientist at
the Carnegie Institution.
With that, let me turn over the opening statement to Mr.
Calvert. Welcome. I really appreciate your effort to make this
a joint hearing.
[The prepared statement of Hon. David M. McIntosh follows:]
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Mr. Calvert. I would like to thank the gentleman from
Indiana, Mr. McIntosh, for his interest and willingness to host
this hearing between our two subcommittees. And I want to thank
my good friend Mr. Costello from Illinois for attending also. I
would also like to thank our witnesses today for their
participation in this hearing.
Mr. Chairman, with the number of witnesses before us today,
I will keep my remarks brief, in hopes that we will have ample
time for questions.
A core premise of the United Nations Framework Convention
on Climate Change, the Kyoto Protocol, and the Clinton-Gore
administration's Climate Change Technology Initiative is the
theory that atmospheric buildup of greenhouse gases,
principally carbon dioxide, caused by burning fossil fuels will
destabilize the Earth's climate and trigger all manner of
catastrophic events.
The Kyoto Protocol sets specific targets and timetables for
a basket of six greenhouse gases, including CO2,
and, if ratified by the United States and entered into force,
requires the United States to reduce its net emissions by 7
percent below the 1990 levels in the 2008-2012 timeframe. I
might note that the Science Committee has held numerous
hearings on this in the past 2 years on the Protocol, and knows
its real story--energy use will be more expensive, economic
growth will be jeopardized, and American families will pay
dearly for a flawed treaty. The administration has tried hard
to gloss over the U.N. treaty's fatal flaws, but it cannot
sugarcoat the harsh realities that it would inevitably bring to
our economy and to our way of life.
The administration has repeatedly stated that it has no
intention of implementing the Protocol prior to its
ratification, with the advice and consent of the Senate.
However, the April 10, 1998 legal opinion by then EPA General
Counsel Jonathan Cannon that the Clean Air Act authorizes EPA
to regulate CO2 has triggered concern about a
possible ``backdoor'' implementation of this Protocol, a
concern which I share, and I am sure everyone here is concerned
about. In fact, EPA's sweeping interpretation of its powers
under the Clean Air Act would allow it also to regulate other
greenhouses gases, such as methane or even water vapor and
clouds, which account for about 96 percent of the greenhouse
effect.
The EPA opinion also notes that before it can issue
regulations governing a pollutant under the Clean Air Act, the
EPA Administrator must make a determination that the pollutant
is ``reasonably anticipated to cause or contribute to adverse
effects on public health, welfare, or the environment.''
I am looking forward to today's testimony from our panel of
legal experts on the EPA opinion, as well as from our
scientific panel who will address the questions of whether man-
made emissions of CO2 also adversely affect public
health, welfare, or the environment.
With that, Mr. Chairman, I would yield back the balance of
my time.
[The prepared statement of Hon. Ken Calvert follows:]
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Mr. McIntosh. Thank you, Mr. Calvert. Again, I do
appreciate your joining us and co-chairing this hearing. And at
certain points, because I have a markup over in Education, I
will be calling on you to chair this for us. I appreciate that.
Let me now turn to Mr. Costello. Would you like to make an
opening statement?
Mr. Costello. Mr. Chairman, I have a brief opening
statement. Like you, I will have to leave in just a minute, so
I trust that your ranking member will be here shortly.
Mr. Chairman, I thank you and my good friend from
California, Chairman Calvert for calling the hearing today. I
think by now we are all familiar enough with the Clean Air Act
and its many provisions to at least suspect that it provides
the EPA with the authority to regulate carbon dioxide. However,
at this point, it is less important than the question of
whether the information we have at this point in time indicates
that carbon dioxide is actually causing harm to humans or to
our environment. I do not believe that this test has been met.
The Congress and the administration have both indicated,
and I adamantly agree, that the Kyoto Protocol should not be
implemented prior to its ratification by the Senate. I believe
we are all clear on that point. Therefore, I believe that we
should be engaged in more positive pursuits than debating
authorities under the Clean Air Act.
It is in our national interest to look for ways to utilize
energy resources more efficiently and to develop alternative
energy resources that we will need in the future. We also
should continue to develop a better understanding of all
variables that affect local climate on both short and long-term
scales. Increased greenhouse gases may be changing our climate.
However, regardless of whether they are changing our climate or
not, we need to understand climate phenomenon and their
relationship to regional weather patterns and the effect on the
frequency and intensity of storms or droughts. This information
is vital for disaster preparedness and understanding impacts on
weather-dependant sectors, such as agriculture. I hope we can
move beyond the climate change debate to working on policies
that benefit our constituents.
I thank all of the witnesses for being here today. I look
forward to hearing their testimony.
Mr. Chairman, with that, I yield back the balance of my
time.
Mr. McIntosh. Thank you, Mr. Costello, and thank you for
joining us. Undoubtedly, Mr. Kucinich is also over in the
Education Committee markup, since we both serve on that
committee as well.
Let me call our first panel of witnesses. I would ask each
of you to summarize any prepared statement you have in
approximately 5 minutes or so, and then we will be able to put
your entire remarks into the record.
One of the policies that Chairman Burton has asked all of
the subcommittees of the Committee on Government Reform to do
is to swear in our witnesses. So, if all of you would please
rise.
Do you solemnly swear that the testimony you will give
today is the truth, the whole truth, and nothing but the truth?
[Witnesses sworn.]
Mr. McIntosh. Thank you. Let the record show that each of
the members of the first panel answered in the affirmative.
Mr. Guzy, welcome. Thank you for coming today. Please share
with us your testimony.
STATEMENTS OF GARY S. GUZY, GENERAL COUNSEL, U.S. ENVIRONMENTAL
PROTECTION AGENCY; JAMES HUFFMAN, DEAN, LEWIS AND CLARK LAW
SCHOOL; PETER GLASER, ESQ., SHOOK, HARDY, AND BACON; AND
JEFFREY G. MILLER, PROFESSOR OF LAW, PACE UNIVERSITY SCHOOL OF
LAW
Mr. Guzy. Thank you, Chairman McIntosh, Chairman Calvert,
and members of the subcommittee, for the invitation to appear
here today. I am pleased to have the opportunity to explain the
U.S. Environmental Protection Agency's views as to the legal
authority provided by the Clean Air Act to regulate emissions
of carbon dioxide.
Before I do, however, I would like again to stress, as has
been noted, that the administration has no intention of
implementing the Kyoto Protocol to the United Nations Framework
Convention on Climate Change prior to its ratification with the
advice and consent of the Senate.
Some brief background information may be helpful to
understand the context for the question of legal authority
posed by the subcommittee in this hearing. In the course of
generating electricity by burning fossil fuels, electric power
plants emit into the air multiple substances that pose
environmental concerns. Some of these are already subjected to
some degree of regulation. EPA has worked with a broad array of
interested parties to evaluate multiple pollutant control
strategies for this industry, and has also conducted an
analysis of the scope of Clean Air Act authority to accomplish
these. These have arisen in a series of forums dating back to
the Clean Air Power Initiative in the mid-1990's, and in
developing the administration's electric utility industry
restructuring proposals.
On March 11, 1998, during hearings on EPA's fiscal year
1999 appropriations, Representative DeLay asked Administrator
Browner about reports that EPA claimed it had authority to
regulate emissions of pollutants of concern from electric
utilities, including carbon dioxide. The Administrator replied
that the Clean Air Act provides such authority, and agreed to
supply to Representative DeLay a legal opinion on that point.
Therefore, my predecessor, Jon Cannon, prepared a legal opinion
for the Administrator on the question of EPA's legal authority
to regulate several pollutants. The legal opinion, which I
endorse, requested by Representative DeLay, was completed in
April 1998, and it addressed EPA's Clean Air Act authority to
regulate emissions of four pollutants of concern from electric
power generation--nitrogen oxides, sulfur dioxide, mercury, and
carbon dioxide. I will summarize the conclusions only as they
relate to carbon dioxide. But let me emphasize that this
analysis is largely theoretical. EPA currently has no plans to
regulate carbon dioxide as an air pollutant, and, despite
statement by others to the contrary, we have not proposed to
regulate CO2.
The Clean Air Act includes a definition of the term ``air
pollutant'' which is the touchstone of EPA's regulatory
authority over emissions. Section 302(g) defines air pollutant
as ``any air pollution agent, or combination of agents,
including any physical, chemical, biological, radioactive
``substance or matter which is emitted into or otherwise enters
the ambient air.'' The opinion noted that CO2 thus
would be an air pollutant within the Clean Air Act's
definition. Perhaps most telling to me, Congress explicitly
recognized emissions of CO2 from stationary sources,
such as fossil fuel power plants, as an ``air pollutant`` in
section 103(g) of the act. That section authorizes EPA to
conduct a basic research and technology program to include,
among other things, ``improvements in non-regulatory strategies
and technologies for preventing or reducing multiple air
pollutants, including sulfur dioxides, nitrogen oxides, and
carbon dioxide,'' among others.
The opinion explains further that the status of
CO2 as an air pollutant is not changed by the fact
that it is found in the natural atmosphere. Congress specified
regulation in the Clean Air Act of a number of naturally
occurring substances as air pollutants because human activities
have increased the quantities present in the air to levels that
are harmful to public health, welfare, or the environment. For
example, sulfur dioxide is emitted from geothermal sources;
volatile organic compounds, which are precursors to harmful
ground-level ozone, are emitted by vegetation; and some
substances specified by Congress as hazardous air pollutants
are actually necessary in trace quantities for human life but
are toxic or harmful at levels higher than found ordinarily or
through other routes of exposure. Phosphorus, manganese, and
selenium, these are examples of such pollutants.
While carbon dioxide as an air pollutant is within the
scope of regulatory authority provided by the Clean Air Act,
this by itself does not lead to regulation. Before EPA can
actually issue regulations through a rulemaking process
governing a pollutant, the Administrator first must make a
formal finding that the pollutant in question meets specific
criteria laid out in the act. Many of these provisions share a
common feature, in that the exercise of EPA's authority to
regulate air pollutants is linked to a determination by the
Administrator regarding the air pollutant's actual or potential
harmful effects on public health, welfare, or the environment.
This is true for authority under section 109 of the act to
establish National Ambient Air Quality Standards.
By the way, section 302(h), a provision dating back to the
1970 version of the Clean Air Act, defines ``welfare,'' for
purposes of secondary effects, as including ``effects on soil,
water, crops, vegetation . . . weather, visibility, and
climate,'' among others. So, that since 1970, the Clean Air Act
has included effects on climate as a factor to be considered in
the administration's decision as to whether to list an air
pollutant under section 108. Analogous threshold findings are
required before the Administrator may establish new source
performance standards under section 111, or list and regulate a
pollutant as hazardous under section 112.
Given the clarity of the statutory provisions defining air
pollutants and providing authority to regulate them, there is
no statutory ambiguity that could be clarified by reference to
legislative history. Nevertheless, Congress' decision in the
1990 amendments not to adopt additional provisions directing
EPA to regulate greenhouse gases by no means suggests an
intention to limit pre-existing authority to address any air
pollutant that the Administrator determines meets the statutory
criteria for regulation under a specific provision of the act.
Let me reiterate one of the central conclusions of the EPA
memorandum. ``While CO2, as an air pollutant is
within EPA's scope of authority to regulate, the Administrator
has not yet determined that CO2 meets the criteria
for regulation under one or more provisions of the Act.'' That
statement remains true today. EPA has not made any of the act's
threshold findings that would lead to regulation of
CO2 emissions from electric utilities, or any
source. Is it well-crafted, as Chairman McIntosh asked, to this
goal? I would just point out the second finding of the EPA
memo, that existing authority does not easily lend itself to a
cost-effective mechanism, to impose a cap and trade program,
and the administration is pledged to consult with Congress on
the best mechanisms for doing so.
I also wish to stress once more that while EPA will pursue
efforts to address the threat of global warming through the
voluntary programs authorized and funded by Congress, and will
carry out other mandates of the Clean Air Act, this
administration has no intention of implementing the Kyoto
Protocol prior to its ratification on the advice and consent of
the Senate.
This concludes my prepared remarks. I ask that my full
statement be submitted for the record, and would be pleased to
answer any questions that the subcommittees may have. Thank
you.
[The prepared statement of Mr. Guzy follows:]
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Mr. McIntosh. Thank you, Mr. Guzy. And there being no
objection, your full statement will be included in the record,
as will the full statements of all our witnesses.
Our second witness will be Mr. Glaser.
Mr. Glaser. Thank you, Mr. Chairman. My name is Peter
Glaser. I am an attorney in the Washington, DC office of the
law firm of Shook, Hardy, and Bacon. I have represented clients
on the subject of potential global climate change over the last
10 years.
My testimony today examines the question: Does the U.S.
Environmental Protection Agency currently have authority to
regulate carbon dioxide emissions under the Clean Air Act or
other statute? My analysis is set forth in the written version
of my testimony, and, in more detail, my analysis is reflected
in opinion of the National Mining Association dated October 12,
1998, and available on NMA's website.
Based on my analysis, I would conclude that Congress did
not delegate authority to EPA to regulate carbon dioxide
emissions. EPA, of course, takes the opposite view. It seems to
be EPA's thesis that because CO2 is emitted into the
air, it must be an air pollutant, and that if the Administrator
finds that carbon dioxide endangers the public health or
welfare or the environment, then various provisions of the act,
none of which mention carbon dioxide, could be invoked to
regulate the substance. But the factual or technical issue of
whether carbon dioxide endangers health, welfare, or the
environment is only the beginning of the analysis of the legal
question of whether EPA has the regulatory authority that the
Agency claims. I defer to members of the Science Panel to
present the case that carbon dioxide emissions are not a threat
to America or the globe. If such threat does not exist, then
even EPA would agree it has no authority to regulate greenhouse
gas emissions.
My analysis shows that even assuming for the sake of
argument that carbon dioxide emissions do present a danger to
health, welfare, or the environment, EPA nevertheless could not
regulate those emissions. Why not? Because Congress, very
simply, did not give EPA the power to do so in the Clean Air
Act or other statute. Given the far-reaching consequences
carbon dioxide regulation poses to our society, and given the
uncertain science of global warming, Congress reserved the
power to itself to determine in the future whether or not to
authorize restrictions on CO2 emissions.
In brief, my analysis includes the following elements. We
first examined the language of the Clean Air Act and found no
explicit authorization to regulate carbon dioxide emissions.
Such emissions are addressed only in non-regulatory portions of
the act. Given that regulation of carbon dioxide would have
major consequences for all sectors of the economy, the fact
that Congress never expressly gave EPA the authority to
regulate such emissions is highly convincing of Congress'
intent not to do so.
I next examined various sections of the Clean Air Act to
determine whether Congress may have implicitly given EPA
authority to regulate carbon dioxide emissions. No such
authority exists. There is simply no rational way that I can
figure out to regulate a global phenomenon such as global
climate change under the National Ambient Air Quality
Standards. EPA admits that the NAAQS do not, I think the
testimony was, ``do not easily lend themselves to regulation.''
I would say that the NAAQS do not in any way lend itself to
regulation, and that reflects Congress' intent not to regulate
carbon dioxide under the NAAQS.
Similarly, the regulation of carbon dioxide does not fit
within the sections of the act dealing with new source
performance standards, hazardous air pollutants, or
transboundary air pollution.
We then examined the legislative history of the Clean Air
Act. As we know, Congress rejected a provision to regulate
carbon dioxide emissions when enacting the Clean Air Act
Amendments of 1990. As the Supreme Court has emphasized, ``few
principles of statutory construction are more compelling than
the proposition that Congress does not intend sub silentio to
enact statutory language that it has earlier discarded.''
Finally, we examined other congressional activity dealing
with potential global climate change to attempt to discern an
intent to regulate or not to regulate carbon dioxide emissions.
Congress has dealt with climate change issues at least since
the late 1970's and has enacted a number of items of
legislation dealing with this subject. Yet, all of the
legislation enacted has been non-regulatory, including Senate
ratification of the purely voluntary Framework Convention on
Global Climate Change, and, of course, the Framework Convention
on Climate Change Amendment, the Kyoto Protocol proposed
amendment has not been submitted to the Senate for
ratification. It is just not possible to square this long
history of congressional rejection of greenhouse gas
restrictions with EPA's claim today of discretion to issue far-
reaching regulations.
In conclusion, there is no more axiomatic provision of
administrative law than that the authority of government
agencies is limited to the authority granted them by Congress.
This principle was confirmed recently by the U.S. Court of
Appeals for the D.C. Circuit in the American Trucking
Associations case, striking down EPA's recently promulgated
NAAQS for ozone and particulate matter. EPA's claim that it may
regulate carbon dioxide is an extraordinary attempt by the
Agency to arrogate to itself power to control virtually all
facets of the American economy. It is simply not believable
that Congress would have granted EPA this power without ever
explicitly having said so.
That concludes my oral remarks, Mr. Chairman. I do have
written remarks for the record.
[The prepared statement of Mr. Glaser follows:]
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Mr. McIntosh. Thank you very much, Mr. Glaser. Your remarks
will be included in the record.
Our third witness will be Mr. Miller.
Mr. Miller. Thank you, Mr. Chairman. I am pleased to be
here, and thank the two Chairs and the Members for inviting me.
I have very little to add to what Mr. Guzy has said with regard
to whether CO2 is a pollutant or could be a
pollutant under the Clean Air Act. The definition is very
broad, almost anything can fit within it. The definition
contains no limitations; it does not exclude CO2,
and nothing anywhere else in the act excludes it.
I should mention that those broad types of jurisdictional
provisions were not unusual in the legislation of the early
1970's. In the Clean Water Act, for instance, there is a very
broad definition of pollutant as well. The courts have held
``pollution'' there to include sand, dead fish, natural
material from streambeds and banks, and even chlorine that is
added to drinking water reservoirs for purification purposes.
Under the Clean Water Act, it is a little worse than under
the Clean Air Act from the polluter's perspective, because the
discharges of a pollutant without a permit are illegal without
any regulatory activity on EPA's part. Under the Clean Air Act,
pollutants may be emitted into the air unless EPA takes
regulatory action to regulate them, which it has not done for
CO2. So the two-part determination that EPA must
make to regulate under the Clean Air Act--the first being that
we're dealing with an air pollutant, and the second, that the
pollutant has adverse effects on health or welfare--the first I
think is almost pro forma, the second is far more difficult and
EPA has not attempted that here.
I would like to just mention a few of the points which have
been made which may be a little misleading. It has been
contended, for instance, that sections 108 and 109 would not
authorize CO2 to be regulated under the National
Ambient Air Quality Standard provisions because it is not
mentioned. If that is the case, EPA has no authority to
regulate anything under those provisions because they do not
mention any pollutants. Second, it has been said that the fact
that most of the pollutants that EPA regulates as National
Ambient Air Quality Standards are particularly mentioned or
listed in sections 171 to 193, which is a congressional
direction for EPA to regulate those pollutants. This is a
little miscast as well. Those sections did not come about until
EPA had already listed those pollutants as criteria pollutants
and had regulated them for years. Sections 171 to 193 nowhere
hint that CO2 is not a pollutant or should not be
regulated by EPA.
It has been argued that the SIP process is not appropriate
for controlling CO2 because CO2 is a
global rather than a local pollutant. That is an interesting
point. I think we need to step back and recognize that the
pollutants that are regulated from this system are on a
spectrum, from very local pollutants like carbon monoxide, to
very long-range pollutants like ozone or sulfur oxides, which
are international. The SIP process has been best at controlling
local pollution and has not been nearly as good at controlling
transboundary pollution, which is why Congress has had to grant
additional authority, for instance, for controlling acid rain.
But that does not mean that the SIP process is useless in
addressing long-range pollutants. Indeed, it has been.
Of course, EPA, if it undertakes listing of CO2,
or any other pollutant, as a criteria pollutant, must accompany
that with information about what the States can do about it,
what industry can do about, how emissions can be curtailed.
Unless it can do that, it would not be appropriate for EPA to
go down that route. The fact that there is not a lot of
technology available right now to control emissions of
CO2 is perhaps not entirely true or entirely
relevant. There are technologies which increase the efficiency
of electric generation, for instance. That has the direct
effect of controlling CO2 emissions. If you produce
more kilowatt hours out of burning the same number of BTUs, you
have produced the same number of BTUs with lesser emissions of
CO2. It should not be forgotten that the Clean Air
Act, as it was originally conceived, was a technology-forcing
statute. When it was enacted in 1970, the automobile companies,
under oath before Congress, said that there was no technology
to address curtailment of emissions from automobiles. Well,
guess what? It did not take very long to come up with that
technology when their feet were held to the fire. So it may
well be possible that appropriate technologies could be
developed here.
Finally, the argument that the Congress rejected a 1970
Senate bill requiring EPA to take a variety of measures to
curtail greenhouse gases does seem to be a bit of a non
sequitur. Since it did require EPA to take action on a broad
array of pollutants, not just CO2, its defeat does
not necessarily tell us what Congress would have done with a
narrow CO2 bill. Defeating a requirement for EPA to
take action is not the same thing as saying EPA cannot take
action. I think, with regard to that, we should remember the
admonitions of Justice Scalia, who is one of our leading
thinkers these days on statutory interpretation. He tells us
that we must start with the text and that is where we should
end up. The legislative history is not a good guide to what the
text of a statute tells us. Rejected legislation tells us very
little about the meaning of enacted legislation, and the
failure of the legislature to enact legislation in a different
era tells us very little about what was intended by the
Congress that enacted the legislation. We are talking, in the
terms of 108, 109, 110, 111, these other basic provisions,
about things that were enacted back in 1970. Congress might not
enact them the same way today, but we are dealing with what was
enacted in 1970.
Thank you very much.
[The prepared statement of Mr. Miller follows:]
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Mr. McIntosh. Thank you for your testimony, Mr. Miller.
Our final witness on this panel is Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chairman. My name is James
Huffman. I am professor of law and Dean at Lewis and Clark Law
School in Portland, OR. I have taught constitutional law and
natural resources law for 25 years.
My conclusion on the subject of these hearings is that EPA
regulation of carbon dioxide pursuant to the Clean Air Act is
unauthorized and would constitute a clear violation of the
fundamental constitutional principle of separation of powers.
Assuming, for the sake of argument, that regulation of
carbon dioxide emissions is a good idea from a policy
perspective, it does not follow that EPA has the authority to
enact such regulations. While the framers of our Constitution
undertook to create a government that could provide for the
public welfare, they were even more concerned to create a
government that was constitutionally limited and constrained.
Pursuant to the principle of separation of powers, only
Congress has the authority within clearly defined
constitutional limits to determine which good ideas will become
government policy in law. Absent expressed statutory
authorization, there are important and, indeed, fundamental
constitutional reasons to insist that EPA does not have
authority to regulate carbon dioxide.
We are not concerned here with an isolated toxic substance
which Congress might have overlooked in the construction of its
regulatory scheme. To the contrary, we are concerned with one
of the most plentiful compounds in the Earth's atmosphere, the
regulation of which will have dramatic and long-reaching
effects for all Americans. Under these circumstances, the core
values of our constitutional democracy require that Congress
make the monumental decision, which the EPA would, if it
regulated CO2, appropriate to itself.
In the current administration, some departments of the
government have been particularly aggressive in reaching beyond
their enabling legislation to pursue an agenda which Congress
has not embraced. The Department of Interior has claimed
authority to implement ecosystem management in legislation
enacted before the idea of ecosystem management was even
conceived. The Department of Agriculture has just this week
issued proposed regulations which, in the words of their press
release, would ``create a new vision for national forest
planning.'' EPA's regulation of carbon dioxide would be a
similar over-reaching.
Notwithstanding Mr. Guzy's protestations to the contrary,
there seems little doubt that the administration's objective is
to move the United States toward compliance with the
objectives, if not the explicit standards, of the Kyoto
Protocol, and I would note the statements from the two leading
figures in the administration to my left. Treaties do not
become the law of the land without the consent of two-thirds of
the members of the U.S. Senate. The super majority is required
because the framers believed that committing the United States
to agreements with foreign nations is of particular moment. It
is, therefore, doubly offensive to the principle of separation
of powers for the Executive who has negotiated a treaty to
propose regulations designed to implement that treaty without
the Senate's consent and without any implementing legislation
approved by the Congress.
Every Member of Congress, including those Members of the
Senate favoring ratification of the Kyoto Protocol, should be
resolute in their opposition to unauthorized EPA regulations
designed to implement standards of that unratified
international agreement. It is horn book constitutional law
that our government is one of limited and divided powers.
The recent D.C. Circuit Court of Appeals decision in
American Trucking, which Mr. Glaser has mentioned, is of
central relevance to the question before these committees. At
issue in American Trucking was whether or not EPA had acted
within its authority in setting new standards for particulate
and ozone ambient air quality. The court acknowledged in that
opinion that, unlike carbon dioxide, EPA has expressed
statutory authority to regulate ozone and particulates, but
concluded that ``EPA has failed to state intelligibly how much
is too much.'' ``It was,'' said the court, ``as if Congress
commanded EPA to select big guys, and EPA announced that it
would evaluate candidates on height and weight but revealed no
cutoff point.'' EPA's regulation of carbon dioxide would be
even less well-rooted in the language and legislative history
of the Clean Air Act. To paraphrase the American Trucking
opinion, it is as if Congress commanded EPA to protect health,
and EPA announced that it would regulate anything which might
affect health but revealed no standards for assessing whether
the net effects were positive or negative. The court's decision
in American Trucking is surely correct.
The Congress should not depend upon the courts to protect
its constitutionally defined power from usurpation by
administrative agencies. The American Trucking opinion is
something of an aberration in nearly three-quarters of a
century of judicial deference to expanding power in the Federal
bureaucracy. Indeed, critics of the circuit court's decision
have been quick to suggest that the non-delegation doctrine was
generally thought to have gasped its last breath in Schecter
Poultry in 1935. Perhaps American Trucking marks the beginning
of the revival of the non-delegation doctrine. But even in that
event, Congress has a responsibility to jealously guard its
authority, not for the sake of power, but for the sake of the
liberties of Americans which depend upon adherence to the
principle of separation of powers. Separation of powers is not
just a simple matter of government organization or of
convenience. It is a fundamental principle of American
constitutional law, as important to the protection of private
and public liberty as the Bill of Rights.
It is surely fair to assume that EPA is motivated to serve
the public good in everything it does, including its proposed
regulation of carbon dioxide. But good intentions do not
satisfy the standards of the Constitution. If carbon dioxide
emissions are of sufficient concern to warrant Federal
regulation, it is not asking too much that Congress provide the
authorization required by the Constitution. Thank you.
[The prepared statement of Mr. Huffman follows:]
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Mr. McIntosh. Thank you, Mr. Huffman. I appreciate your
remarks. As I said, the complete written text of all of your
testimony will be put into the record.
I have a couple of questions and then we will recognize my
fellow panelists. First, Mr. Guzy, you had mentioned the
general provision on pollutants in section 302(g), and then to
bolster a very broad interpretation of what that is in the
Cannon legal memorandum you cite section 103(g) as proof that
CO2 is a pollutant within the meaning of the Clean
Air Act because it is listed there. But in that same section
Congress put into law ``Nothing in this subsection shall be
construed to authorize the imposition on any person of
pollution control requirements.'' Similarly, the provision in
the Clean Air Act mentioning global warming, section 602(e)
stipulates ``The preceding sentence shall not be construed to
be the basis of any additional regulation under this chapter.''
How do you interpret these congressional restrictions in
using those subsections to bolster your argument about the
general text?
Mr. Guzy. Mr. Chairman, it is important to keep in mind why
the memorandum cites 103(g)(1). It does not cite it, and I want
to be very clear about this, as in and of itself statutory
authority for regulation of CO2.
Mr. McIntosh. I understand that it cites it to bolster the
argument about section 302.
Mr. Guzy. But what it does absolutely clearly is indicate
that Congress regarded carbon dioxide as ``an air pollutant.''
And the limiting provisions that you have cited here, which
basically say that nothing in this subsection shall be
construed to authorize the imposition on any person of
pollution control requirements, go to the question of do we
have authority to draw from a technology and research program
particular control requirements that could be imposed on
sources.
That's not the issue that we're citing 103(g) for. What
we're citing it for is the clear congressional understanding
that carbon dioxide from sources such as electric generating
utilities, stationary sources such as that, can properly be
regarded as an air pollutant and should be regarded as an air
pollutant under the definitions of the act. That then gives
rise to the next set of questions under the particular
regulatory provision, the particular statutory provisions that
we then would face were the administration to decide to move
forward with that kind of an action.
The question that you asked about section 602 also is not
referenced in the memorandum as a source of authority for the
general understanding of Congress that, in fact, carbon dioxide
should, or could, be regarded as an air pollutant.
And if I may, Mr. Chairman, make a few more general points.
While Congress specified certain substances that are widespread
in recognizing that there could be regulation as under the
provisions for National Ambient Air Quality Standards, Congress
also recognized that knowledge would change, knowledge would
evolve. And so it also gave authority to the Administrator to
designate new types of pollutants, as Ambient Air Quality
Standards, as criteria air pollutants, the most fundamental
that could be subject to a regulatory scheme. It also provided,
I might add, a very elaborate regulatory process that the
agency would need to go through were it to commence that type
of work. And those standards constitute quite clear limiting
principles for any future agency action.
Mr. McIntosh. It strikes me as somewhat self-serving to
select those parts where Congress explicitly says we don't
intend to create regulatory authority, and then discount an
explicit provision where regulatory authority was in fact
rejected by Congress.
Is there any substance that you know of that does not fit
the definition of air pollutant that you are putting before us
in section 302?
Mr. Guzy. Again, I would refer the chairman also to the
sort of next set of requirements that----
Mr. McIntosh. No, no, no, no. Getting to that initial step,
which is where you say we are at with carbon dioxide, is there
any substance that would not meet that test?
Mr. Guzy. I will concede that it is a very broad definition
and there is an argument for just about any substance that it
could be regarded as an air pollutant under that definition.
Mr. McIntosh. That's what I thought. In which case, you are
reading the act to be a general mandate for EPA to provide for
health and welfare, because any substance qualifies under the
first step, and you are saying Congress created, in the name of
a Clean Air Act, a general regulatory authority for all
substances if it affects health and welfare.
Mr. Guzy. I would like to be a little bit more precise
about it, Mr. Chairman. First of all, I was assuming that by
your question you were referring to any substance which gets
into the air, and I take that as a given. But that would be
necessary to qualify under the definitional section in 302. But
then the question that is faced, which is a fundamental
question that EPA has not yet faced, is what regulatory scheme
is it then potentially subject to. And there are very clear
limitations in the act that would rule out all sorts of
substances. I particularly refer you to section 108, where the
substance has to cause or contribute to air pollution which may
reasonably be anticipated to endanger, not just affect,
endanger public health or welfare, and the presence has to
result from numerous or diverse mobile or stationary sources.
In other words, it is susceptible to the kind of regulatory
scheme that Congress set forward in the 1970 act, and then
again ratified in the later amendments.
Mr. McIntosh. Let me ask Mr. Glaser, do you want to comment
on this discussion?
Mr. Glaser. Yes, absolutely. I think the focus on whether a
substance is an air pollutant within this incredibly broad
definition of anything emitted into the ambient air is somewhat
of a red herring, for a number of reasons. First of all, it
ignores some very, very basic principles of statutory
construction, including that we do not make a fortress out of
the dictionary, we don't engage in over-literalism, but in
construing statutory language we try to view the language in
light of the overall context and regulatory program in which
the language is used. So it is not enough simply to say, well,
it is emitted to the ambient air, therefore it must be an air
pollutant, and therefore we can go ahead and regulate it if it
causes danger.
The question is, is it the type of air pollutant, is it the
type of emission that Congress designed this statute to deal
with? And we know what kinds of air pollutants this statute was
designed to deal with. They are pollutants that are emitted to
the air and are deposited and are breathed in by people and
have a direct effect either on people or the environment. It is
not fair, it is not correct to say that this statute was
designed to deal with the type of emission, like carbon
dioxide, which is emitted into the atmosphere and circulates
globally in the troposphere and creates an indirect
environmental impact in that sense. For that type of
environmental impact, this act has no provisions that can deal
with that. And that is the whole problem here.
We heard an earlier witness say the act does not just deal
with local pollution, it deals with regional transport or long-
range transport. It is absolutely true, the Clean Air Act has
provisions that deal with wind-borne air pollution that blow
pollutants downwind 50, 100, 200 miles. But that is not
anything like carbon dioxide. Carbon dioxide is not an emission
that goes in the air and it is blown downwind, in the sense
that it is emitted in one area of the country and it is blown
downwind and has an effect in another area of the country. One
ton of carbon dioxide emitted in Kansas has the same overall
impact on international global warming as a ton emitted in
Bangladesh. So there is therefore no way that this structure
created in this act can deal with it.
The NAAQS, for instance, every State has to submit an
implementation plan and that implementation plan has to provide
how the State is going to get into attainment for the
particular NAAQS. The State is required, mandated to come up
with an attainment plan that will meet the NAAQS. Now, it is
true that there are regional transport issues so that upwind
States have to include in their implementation plans provisions
to eliminate any contribution the upwind State may be making to
downwind non-attainment. But that system has no rational
application whatsoever to carbon dioxide. An earlier witness
said it would be useful in some way. It is not even a question
of being useful. It just does not fit. It is a round peg in a
square hole and you cannot presume that Congress would have
intended to provide a system of regulation that just cannot
possibly work.
So, in conclusion, I would simply say that to engage in
this debate on what is or what may not be an air pollutant
strictly within the terms of the Clean Air Act is pretty
fruitless. The real question is what does the substance of the
act say about dealing with a substance like carbon dioxide. And
it is just not in there.
Mr. Guzy. Mr. Chairman, may I just respond very quickly?
Mr. McIntosh. Yes. And while you are doing that, I have got
another quick question for you, which is, did you reevaluate
the Cannon opinion in light of the American Trucking
Association decision?
Mr. Guzy. Yes. Let me just respond very quickly, if I may,
to Mr. Glaser. I would just refer the subcommittees to a
provision which has been in the act since 1970, was ratified
again in 1977, remained in the act after the 1990 amendments,
and that is section 302(h), which recognizes that welfare, the
subject of secondary ambient air quality standards, can include
effects on ``soils, water, crops, vegetation, man-made
materials, animals, wildlife, weather, visibility, and climate,
damage to and deterioration of property and hazard to
transportation, as well as effects on economic values and
personal comfort and well-being, whether caused by
transformation, conversion, or in combination with other air
pollutants,'' not necessarily purely inhalation routes of
exposure, as Mr. Glaser suggests.
We did look at the ATA decision. One thing that I will say,
that Dean Huffman and I are very much in agreement on, is that
the ATA decision is an aberration, as he said. As you well
know, Mr. Chairman, we have sought rehearing before the D.C.
Circuit of that decision and requested a rehearing en banc
before the full court. But despite our fundamental disagreement
with it, that is the prevailing precedent in the Circuit at
this time and we obviously want to conform our activities to
it.
We have looked at that decision. Were it to stand, our
sense is that there is enough clear guidance, limiting
principles in this statutory construct that would suggest that
in fact there is not an unconstitutional delegation of
authority were EPA to go forward with some kind of regulatory
approach to limiting carbon dioxide. But, again, I want to get
back to my basic point, which is that EPA has not made that
kind of decision and currently has no plans to do so.
Mr. McIntosh. Right. I would have to say for the record I
would disagree with your reading of that case. To me it would
read more like an unconstitutional usurpation of authority by
EPA that the courts were trying to prevent when they struck
down those rules.
Let me turn now to Mr. Calvert for questions he might have.
Mr. Kucinich. Are we going back and forth, Mr. Chairman?
Mr. McIntosh. We were going to have the two chairmen speak
first, then go back and forth. Does that work for you, Dennis?
I will try to get you in before we go back to the votes.
Mr. Kucinich. I just wanted to see what the ground rules
are. I am ready to play, I just wanted to know what the rules
are.
Mr. McIntosh. Great. We were going to do each committee
back and forth.
Mr. Kucinich. OK. And we have 10 minutes? No problem.
Mr. Calvert. I thank the chairman. There is a lot of
discussion about the intent of Congress at the time of the
implementation of the Clean Air Act. I would ask the chairman,
there are not too many Members still here, but Congressman
Dingell is here and I would ask that he would submit his
testimony or letter to the record. I am sure the gentleman from
Michigan would submit testimony on the intention of Congress at
that time. I think it would be interesting to have in the
record, especially from the minority position. So if that is
not objectionable, Mr. Chairman.
Mr. McIntosh. There being no objection, we will hold the
record open for shall we say 10 days.
Mr. Calvert. I would ask that that be done. Ten days is
fine with me.
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Mr. Calvert [presiding]. I would like to ask Mr. Guzy a
question. On June 11, 1998, EPA published a proposed rulemaking
regarding the protection of stratospheric ozone, refrigerant
recycling, substitute refrigerants in the Federal Register. It
is my understanding that this proposed rule may ban certain
non-ozone-depleting refrigerants if they have high global
warming potentials. The text of the proposed rulemaking states:
``EPA recognizes that the release of refrigerants with high
global warming potentials could cause a threat to the
environment.''
This implies to me that under the rulemaking EPA has made a
determination that global warming is a threat to the
environment. Since CO2 is considered a major
contributor to global warming, then is it not just a small step
for EPA to declare CO2 a threat to the environment
and to proceed with regulations? What is your comment on that,
Mr. Guzy?
Mr. Guzy. The EPA, under a series of long-standing
commitments that actually preceded this administration, has
expressed concern about the potential for greenhouse gases to
cause a global climate change. In fact, the preceding
administration negotiated and signed on the Nation's behalf the
Rio Declaration. That gives rise to a series of domestic
obligations----
Mr. Calvert. So the administration is determined to start
regulating various gases based upon potential agreements; is
that your testimony, Mr. Guzy?
Mr. Guzy. No. In fact, that agreement, the Rio Agreement
was ratified by the Senate and is binding upon the United
States. Now it does not call for the same kinds of targets and
timetables that the Kyoto Protocol does. Nonetheless, the Clean
Air Act has a number of authorities that compel EPA to look at
environmental effects and we would regard climate change
effects as among those.
Mr. Calvert. For all the witnesses, on any major
controversial issue--and I think everyone on this panel would
agree that this is controversial--of long-standing debate, with
enormous economic implications like global warming, is it even
conceivable that Congress would authorize EPA to launch a vast
new regulatory program without expressly saying so? As far as I
know, this Congress has not said so. Is Congress in the habit
of delegating far-reaching powers to agencies just by mere
silence? Anyone have any comment about that?
Mr. Huffman.
Mr. Huffman. Yes. It is to me a peculiar notion of American
Government that problems that arise that are new problems are
to be solved by searching around in existing legislation for
authority. It seems to me that our constitutional system is
fairly clearly separated into three parts, not with clear
dividing walls between them, but the policymaking function is
clearly the legislature's. It seems to me in recent years,
particularly in the current administration, there has been a
tendency to have an agenda which by-passes Congress and is
sought to be implemented through existing legislation.
Mr. Calvert. Are you saying, Mr. Huffman, that I did run
for election for a purpose?
Mr. Huffman. I would hope so. And I would say that the most
condemning thing that I have heard said today was my friend,
Professor Miller's comment, that this legislation fits almost
anything. Any piece of legislation about which that can be
said, where that argument can be used to justify regulation, is
a piece of legislation which delegates more authority than
Congress can delegate. I think even the U.S. Supreme Court,
which has been reticent to overturn legislation on the non-
delegation theory, would find that argument problematic in
support of regulating CO2.
Mr. Miller. Of course, I think I completed my sentence by
saying that the first test, whether it is an air pollutant,
fits almost anything that is emitted into the air, but that the
second test, which is necessary before EPA does anything, is
that it finds that it is an endangerment to health and welfare
and that something can be done about it.
But the tradition of searching around in existing statutes
to meet a present problem is one of long-standing tradition. I
remember in the Nixon administration when the Environmental
Protection Agency, or its predecessor actually, and the Justice
Department resurrected an 1898 statute having to do with
dredging harbors and rivers to begin a water pollution
permitting program. That was eventually struck down, not
because it was not authorized, but it was struck down because
it did not comply with NEPA.
Mr. Guzy. Mr. Chairman, if I may, we believe that Congress
made a fundamental policy choice when it passed the Clean Air
Act to protect the public health from endangerment from air
pollutants. But it did so in a very far-sighted kind of way. It
did not just say here is the problem, these are solutions. It
said keep looking at it because the science will evolve, the
problems will evolve, you cannot be static in time. In fact, it
included provisions that require us to look back every 5 years
and assess using the best available science through an
independent peer review process whether, in fact, we have got
it right.
Mr. Calvert. Mr. Guzy, I am very interested in clean air. I
represent Riverside, CA, and anyone who represents an area in
southern California is extremely interested in clean air. What
I am concerned about is whether any statutory authority has
been given to regulate CO2. I have heard nothing
from this Congress that gives EPA statutory right to regulate
CO2. I go back to the start of my questioning, I am
interested in Mr. Dingell's testimony he will submit to this
committee for the record as to what the intentions of the
Congress was back thirty years ago under the Clean Air Act.
Mr. Glaser, do you have any comment?
Mr. Glaser. Yes. The problem for the notion that there is
some mop up authority in the Clean Air Act to deal with new
problems as they come along, that is one thing. But we are now
almost 30 years into Clean Air Act regulation. Congress has
taken a look at this act a number of times and has gone back
and included many, many, many more detailed provisions in the
act than there used to be.
The notion about whether a substance should be mentioned in
the act in order to be regulated gets us into the claim of
authority that EPA could potentially regulate carbon dioxide as
a hazardous air pollutant under section 112. Well, I think in
1990 Congress added 190--190--substances explicitly referenced
as hazardous air pollutants and carbon dioxide is not on the
list. Now, does that mean that there might be a 191st substance
out there that EPA is authorized to regulate because this
substance, for instance, was not manufactured in 1990 and
somebody has just discovered something about it. That may be
true. But the notion that Congress in 1990 just sort of missed
carbon dioxide is not credible.
Mr. Calvert. My time has expired, Mr. Glaser. But just as a
final point, and well-taken, it seems to me that people were
talking about at what point does CO2 become
dangerous or gets over the natural level. I guess the only
comment I would have is if you cannot regulate it, it is good
CO2, and if you can regulate it, it is bad
CO2. It is just determined on which type of
CO2 we regulate.
With that, Mr. Chairman, my time has expired.
Mr. McIntosh. Thank you, Mr. Calvert.
Let me recognize now our colleague, Mr. Kucinich. Why don't
you also feel free to take Mr. Costello's time.
Mr. Kucinich. I do not think I will need that much time. I
want to thank the Chair very much for calling this hearing, and
also recognize Mr. Calvert, who I had the pleasure of actually
traveling with to the Conference of Parties in Buenos Aires,
Argentina to discuss some of these same issues. So, I am glad
to have the opportunity to share a panel with you again. I look
forward to some of these important issues that are discussed.
From the outset, what I would like to say, and I think many
members of this committee are fully aware, including, and
perhaps especially Mr. Barr, is that I am a firm believer in
Congress exerting its authority. As some of you will recall, I
am a co-plaintiff with Mr. Campbell of California in
challenging the administration's usurping of congressional
authority on Article 1, Section 8 of the Constitution, the
ability to declare war. So I am not ready to cede congressional
authority on anything. I just wanted to share that with you.
And that is why I think that Mr. McIntosh's point is well-taken
in asking these questions. But I have some questions that I
would like to ask that kind of approach this from a slightly
different perspective, as you may expect.
First of all, welcome to all of the panelists. Professor
Huffman, I have actually had the opportunity to visit your
campus a few times there in Portland, and it is beautiful. It
is a short walk from Tom McCall Park, who was a great
environmentalist who I admire greatly, who actually influenced
my career in some ways. What he did to help reclaim that Oregon
coastline I thought was one of the most important contributions
that any public official has made in this country. So I have a
real affection for Portland and for the area, and it is nice to
see you here.
I would like to start with asking Mr. Guzy, I have read Dr.
Huffman's written testimony in which he refers to EPA's
proposed regulation of carbon dioxide. I came a little bit late
so I may have missed something. Has the EPA proposed
regulations of carbon dioxide?
Mr. Guzy. No. Not in any way.
Mr. Kucinich. OK. So, if there is any statement relating to
EPA regulation of carbon dioxide, I am reading from Dr.
Huffman's testimony, I think it is page 4, ``EPA's proposed
regulation of carbon dioxide,'' you are saying that EPA has not
proposed such regulation?
Mr. Guzy. As he uses it there, we have not. We have used
our authority to----
Mr. Kucinich. I understand that.
Mr. Guzy. Referenced under some other provisions, where
that is appropriate, to address general environmental effects,
particularly under title VI. But to address carbon dioxide as
carbon dioxide, EPA has not proposed any regulation.
Mr. Kucinich. Also, I am again looking at Dr. Huffman's
testimony where he cites the American Trucking case. Are you
familiar with that case?
Mr. Guzy. Yes, I am.
Mr. Kucinich. This may just be a question of linguistic
construction, but maybe you can help me, Mr. Guzy. I am reading
this on the section about government of limited and divided
powers. At issue in American Trucking was whether or not the
EPA had acted within its authority in setting new standards for
particulate and ozone ambient air quality. The court
acknowledge that, and then in parentheses, ``unlike carbon
dioxide,'' EPA has expressed statutory authority to regulate
ozone and particulates, and it goes on. I am not that familiar
with American Trucking. Did they mention carbon dioxide in any
way?
Mr. Guzy. I currently do not remember the court mentioning
carbon dioxide.
Mr. Huffman. That is my parenthetical, not the court's.
Mr. Kucinich. Oh. So maybe brackets would have been better,
professor.
Mr. Huffman. Thank you for the correction.
Mr. Kucinich. My background is in communications. I am not
a law professor. I am just a humble Member of the Congress.
Mr. Huffman. I apologize for that. The editors of my law
review would have corrected me as well. So, thank you.
Mr. Kucinich. I do not work out of those lofty environs. I
am just trying to figure out what the case said. Thanks.
I would like to know, Mr. Guzy, would you comment on the
paper entitled, ``CO2: A Pollutant'' which was
prepared for the National Mining Association by Mr. Glaser and
others.
Mr. Guzy. Well, it does in my estimation draw a number of
sweeping conclusions from some fairly thin facts. At times, it,
in my view, does not fairly present the statutory text that is
presented. For example, in its treatment of 103(g), which is in
our memorandum an absolutely critical provision to make clear
that Congress was well aware that carbon dioxide could be
regarded as an air pollutant, instead of recognizing that
Congress regarded it as an air pollutant, it says it is an
``item.'' It says carbon dioxide is an item to be addressed in
a technology program, a technology and research development
program. That seems to be a fundamental fatal oversight in the
analysis of the statutory text that is in there.
Similarly, a number of the arguments on legislative history
seem to be fairly sweeping in their conclusions. For example,
Congress well knew how to require of EPA that there be a study
before it engaged in regulation; mercury, the utility study,
the Great Waters Study, all of which require that we study, and
submit reports to Congress before engaging in any regulatory
steps. That is absolutely absent with respect to carbon
dioxide. One would expect giving the proper deference to
Congress' intent that----
Mr. Kucinich. Is it possible that as science evolves and
technology evolves, when you look at what might have been the
intent at the time, that to put it into the context of advanced
science may be somewhat difficult, may present a challenge?
Mr. Guzy. If I understand your question, one of the things
that is most striking about the Clean Air Act is how
foresighted Congress was in 1970 when it enacted it, that it
recognized that the problems may change, that technology may
change, that science may change. Not only did it list 188 HAPs,
it also provided authority to the Administrator to remove some
of those if appropriate, or to add others, if needed. Not only
did it say you adopt national ambient air quality standards for
fundamental air quality issues, but it gave the Administrator
authority to add others if needed, if they endanger public
health or welfare.
So, that recognition that action should be premised on the
best available science and that that science will change is
really embodied in the concept of the Clean Air Act. That is
among the fundamental choices that Congress made back then and
has ratified every time since when it has passed and reaffirmed
the Clean Air Act.
Mr. Kucinich. OK. I would just like to say again that, as a
Member of the Congress of the United States, I am not here to
represent administrative opinion, I have constituents who are
very concerned about some of these issues relating to air
quality and to global climate change and things like that. As a
Member of Congress, just as my colleagues here want to insist
that Congress plays a role in these things, I want Congress to
play a role, too.
Thank you very much. Thanks to the panelists.
Mr. McIntosh. Thank you, Mr. Kucinich.
Before turning the questioning over to Mr. Ehlers, let me
just make sure I understand what you were just saying, Mr.
Guzy. That a flaw in Mr. Glaser's analysis is that he talks
about the fact that there is no study, and the fact that there
is no study really means that Congress thought it might
regulate CO2 as a pollutant? I do not mean to be at
all facetious, but I was not following your argument there.
Mr. Guzy. My argument is that when Congress wanted to
require additional scientific assessment before authorizing
regulatory action under pre-existing statutory requirements it
knew perfectly well how to require that. It did it for mercury,
it did it for deposition of air pollutants in the Great Waters,
and it did not do it for CO2. Now, we would not say
that in itself provides an indication of statutory authority to
move ahead. But combined with the other provisions that we have
cited, we believe that it is inappropriate to suggest that
there is some limitation on potential EPA action that can be
derived from any of the succeeding activities that Congress
engaged in on CO2.
Mr. McIntosh. But would you not acknowledge that it is at
least an equally plausible interpretation that Congress, by not
requiring that study, did not think of regulating
CO2 as a pollutant?
Mr. Guzy. I would find that hard to believe in view of the
very clear language in section 103(g) where Congress, in fact,
refers to carbon dioxide as an air pollutant. That seems very
unambiguous.
Mr. Glaser. Mr. Chairman, if I could just jump in. I
actually would reach exactly the opposite conclusion than Mr.
Guzy is reaching on the issue of study. As he said, the act did
include provisions in 1990 amendments for study and then a
decision by EPA whether to regulate. In contrast, there were
provisions in the Clean Air Act I believe for study of methane
but there was no corresponding provision of the act that said,
well, if they determine that methane is a problem, then
regulate. That is not in there. It is not in there anywhere.
I would say that the argument about what the act says about
studies supports the notion that Congress very, very, very
carefully drew the line about what it wanted to do with
CO2, and it did not include regulation.
Mr. McIntosh. OK. I apologize to Mr. Ehlers for using some
of his time. I just wanted to make sure I understood what the
points were there.
Let me recognize Mr. Ehlers for questioning.
Mr. Ehlers. Thank you, Mr. Chairman. Both of us have to go
vote in committee immediately. I had a list of questions but I
will cut to the chase here and just make a comment.
Mr. Guzy and Mr. Miller, you have both made good cases for
the proposition that the EPA has the authority to regulate.
These are good cases but they are not convincing. I think the
crux of the matter, just speaking as a Member of Congress, is a
point that Mr. Huffman made. I might also say that as a
scientist, I am very concerned about the increasing amount of
CO2 and what it is likely to do in climate change,
not so much global warming but climate change of various sorts.
But Mr. Huffman made some basic points and I think they get to
the crux of the matter, as I see it as a Member of Congress.
The point is, simply, I do not think the Congress in 1970
really envisioned CO2 as ever being a problem. I
think the Congress in 1990 began to discern that it was a
problem, although I recognize that legislation started much
earlier than 1990. But if you would say what is the best action
that could be taken today to control the increase of
CO2, I would have to give an answer as a Member of
Congress that the Congress should look at it, because I am not
at all convinced that EPA's activities, if they would operate
within their charter, is the most efficient way of dealing with
the doubling of CO2. For example, increasing CAFE
standards, which I believe is in the province of the Department
of Transportation, and we, of course, legislate that, might be
a much more efficient way. To simply say that we have to double
the CAFE standards would greatly reduce CO2
emissions. Or, perhaps we should double the gas tax. And as a
Republican, I would have to add I would compensate by lowering
the income tax or something else so it is revenue neutral. But,
nevertheless, that would be an effective way of reducing
CO2 emissions.
In terms of power production, you could get rid of immense
amounts of CO2 from plants by engaging in a mammoth
expansion of our nuclear power program. That would also not be
environmentally popular but it would certainly take care of the
CO2 emission problem. And there are a host of other
alternatives, all of which would be administered by agencies
other than the EPA.
And so my argument from a very pragmatic point is, given
the whole argument what Congress intended, what the law says,
what the Constitution says, what the intent is of the
Constitution and the Congress, I would have to simply go with
the fact that I think Congress should revisit the issue and
say, OK, we are increasing CO2 at an alarming rate.
What is the problem and what is the best set of solutions that
we can come up with.
Having made that statement, I will have to leave and go
vote in another committee. So, sorry. You can respond for the
record to the chairman, but I do have to leave and I apologize.
Mr. Calvert. I thank the gentleman's attendance. You are a
brave man. Anybody that wants to raise gas taxes and bring on
nuclear power, you are a brave guy. [Laughter.]
Mr. Ehlers. I did not say that.
Mr. Calvert. Any comment from the panel on Mr. Ehlers'
comments?
Yes, Mr. Guzy?
Mr. Guzy. If I may, I would just point out that the second
part, and a very critical part, of the EPA legal memorandum
points out a very similar point, that existing authorities do
not easily lend themselves to cost-effective mechanisms to
impose a cap and trade program. The administration clearly
favors those kinds of emissions trading programs as the most
cost-effective means for achieving the needed greenhouse gas
reductions. And further, the administration has pledged to work
with Congress on finding appropriate legislative proposals to
be able to accomplish those means in a cost-effective way. So
we would very much agree--not with all of the particular
proposals that he may be contemplating, but the general----
Mr. Calvert. You are not going to resubmit the BTU tax?
Mr. Guzy. Right. But certainly with the general point that
the administration and Congress would do well to work together
to address these issues.
Mr. Calvert. I thank the gentleman.
The gentleman from Georgia, Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman. Mr. Chairman, I am
always amazed at the imagination possessed by Clinton
administration lawyers to find statutory authority wherever
they want to find it but to ignore wherever there is a
prohibition. Just recently one of your colleagues, Mr. Guzy,
from HUD, in answer to a question posed at a hearing trying to
establish some basis for the Clinton administration Department
of Housing and Urban Development involving itself in suits
against manufacturers of firearms, pointed simply to prefatory
general language to a statute regarding HUD housing authorities
talking about providing an appropriate and safe environment as
providing expressed statutory authority for the agency to
involve itself in lawsuits against the manufacturer of a lawful
product.
A couple of years ago we had an attorney from another
department, it may have been State or the FBI, in response to a
question that I posed at another hearing asking what was the
authority for the FBI to send its agents overseas to
investigate a case not involving a U.S. person or U.S.
interest, but to investigate a case involving purely a foreign
matter and foreign nationals having nothing to do with the
United States, and they pointed to a statute that provided the
authority to send agents overseas to investigate cases
involving U.S. persons and U.S. interests. And we just got
involved in a circular argument.
And here today, I am not quite sure what your position is,
but I am sure it is one that careful thought has been given to
to try to get around the long-standing rules of statutory
construction. Twenty years ago, when I did legislative work for
the CIA, it was well-known at that time, and maybe you can cite
me some Supreme Court authority that overturns the legislative
history notions at that time, it was well-established that if
Congress intends to grant a Federal agency power it must do so
expressly.
As a matter of fact, also a statutory rule of long standing
cites that if a number of specific authorities are granted,
there is a clear implication, of which courts will take notice,
that anything else is not included by clear implication. And,
yet, I think you are now saying that simply because Congress
lists a number of areas in which they want EPA to become
involved, simply because they did not include something that
you now want to include, the implication should be otherwise. I
do think that is contrary to general notions of statutory
construction.
In a number of instances where EPA has tried to claim
authority to regulate carbon dioxide, whether it is section 111
of the Clean Air Act, or 112, I think you are, to put it
mildly, on very, very shaky ground. I think you are clearly on
wrong ground. It may be that as a policy matter you just want
to involve EPA in CO2. But I do not think that you
can do so legitimately based on normal rules of statutory
construction because Congress nowhere has granted that
expressed authority to EPA. And as a matter of fact, in those
instances such as we are talking about here today where
Congress has given EPA authority to address as pollutants
certain materials in the ambient air, CO2 is not
listed.
So I really am intrigued by your arguments. I would be
interested if maybe you could address it once again, because I
think your colleagues at the table here have a different
understanding of statutory construction as well.
Mr. Guzy. With all due respect, Congressman Barr, our
argument is not that we find this authority simply through
implication. Rather, our position is that the source of
authority is rooted in the statutory text itself, that it is
not premised purely upon a desired policy outcome. And I want
to be very clear about that.
I ran through it before in my testimony, but I would be
happy to----
Mr. Barr. It is not the policy of the Clinton
administration through EPA to regulate CO2?
Mr. Guzy. Let me also be clear, I made this clear before,
this is very much a theoretical argument. EPA does not
currently have a proposed regulation. We do not have plans to
marshall the authorities that Congress provides in the Clean
Air Act to address CO2.
Mr. Barr. OK. Let me then pose you the following two very
specific questions, which I think are very consistent if you
mean what you just said.
Your testimony seems to reiterate the administration's
commitment not to implement the Kyoto Protocol before it is
ratified.
Mr. Guzy. That is absolutely correct.
Mr. Barr. But you also seem to be claiming that EPA does
have the authority to regulate CO2 emissions.
Mr. Guzy. We believe that the Clean Air Act does provide
that authority, yes.
Mr. Barr. Then notwithstanding that, and based on what you
said previously, can you assure the subcommittee that even
though EPA believes it already has the authority to regulate
CO2, EPA will not do so until and unless the
Protocol is ratified? Will you give us that assurance?
Mr. Guzy. I will assure the subcommittee of the following.
We do not intend to implement the Kyoto Protocol before it is
ratified and unless and until it is ratified by the Senate.
Mr. Barr. You would certainly not do something that you do
not intend to do.
Mr. Guzy. And we have no plans to use our existing
authority to regulate carbon dioxide. But to go further than
that and try and anticipate all of the ways in which in the
future it may be appropriate or not appropriate to use the
authority that Congress has provided in the Clean Air Act to
EPA would not, in our view, be responsible.
Mr. Barr. Are you saying then that if the EPA determines
that CO2 emissions endanger public health, welfare,
or the environment, that the EPA may regulate CO2
even if the Senate does not ratify the Kyoto Protocol? Are you
trying to have it both ways? I admire you if you are trying to
do that. I know that you all do that. Is that what you are
trying to do here?
Mr. Guzy. You have hit on an important point. I think the
critical point is that, although in our opinion there is broad
authority to regulate CO2, the act did cite carbon
dioxide to be within the class of substances that could be
subject to regulation under the Clean Air Act.
Mr. Barr. Not under section 112 though.
Mr. Guzy. Well, perhaps.
Mr. Barr. Section 112 lists several dozen items, but not
CO2.
Mr. Guzy. I am talking about the general definitional terms
of the act for air pollutant. Nonetheless, there would be a
series----
Mr. Barr. Which, according to that broad interpretation,
the definition could mean anything absolutely that is in the
air. Is that how broadly you are interpreting it?
Mr. Guzy. But if I could go on. But then there are a series
of provisions that then follow. And were the administration to
decide to pursue a regulatory approach, we would have to make
through the formal rulemaking process a number of findings, the
most critical of which would be that there is endangerment of
public health, welfare, or the environment. And we have not
commenced that process. We do not have plans to commence that
process.
Mr. Barr. Well, with good reason. That would make every one
of us a polluter.
Mr. Guzy. It would be for, I presume, a specific chemical
or a specific purpose.
Mr. Barr. CO2.
Mr. Guzy. And really recognizing, for example, in the
ambient air quality standard provisions of the act, that there
are specific sources that are specified that are required to be
found the source of those emissions as well, diverse mobile or
stationary sources, and I do not believe that the definition
includes an individual breathing there.
Mr. Miller. If I could interject here. Of course, under the
counterpart statute, the Clean Water Act, we are all polluters.
Half of the pollution regulated under that statute is liquid
and solid waste from humans. So you do not prohibit that. We
effectuate different kinds of treatments for it.
Mr. Barr. Do not even suggest that to the administration,
please. [Laughter.]
Thank you. Thank you, Mr. Chairman.
Mr. Calvert. I thank the gentleman.
Just one quick question for Mr. Guzy before we go to the
next panel. When is the administration going to submit the
treaty for ratification to the Senate? We would like to see it
go over there. Are you going to submit it next week, next
month?
Mr. Guzy. As the administration says, and other people can
probably speak to it far better than I can, we are working hard
to address the issues that the Senate raised in the Byrd-Hagel
resolution.
Mr. Calvert. Do you have a timetable for when you are going
to submit the treaty for ratification?
Mr. Guzy. It really does depend on the work that is being
done in the international negotiations.
Mr. Calvert. So you do not have a timetable to submit the
treaty for ratification. Why is that? Why won't you submit the
treaty for ratification to the Senate?
Mr. Guzy. Again, the administration's commitment is to
ensure that in fact there are the appropriate flexible
mechanisms in place that----
Mr. Calvert. It has nothing to do with the fact that you
may not even have 10 votes over in the Senate for the
ratification of the treaty?
Mr. Guzy. Well, I can tell you what the administration's
commitment is, which is to work with developing countries and
to ensure that there are flexible mechanisms in place.
Mr. Calvert. We certainly thank this panel for your
testimony and for answering our questions. It was of great
interest. This panel is adjourned.
We will now move to panel two. We have Dr. Patrick J.
Michaels, research professor of Environmental Sciences,
University of Virginia; Dr. Christopher B. Field, Carnegie
Institution of Washington, Department of Plant Biology,
Stanford University, California; and Dr. Keith E. Idso, vice
president, Center for the Study of Carbon Dioxide and Global
Change, Tempe, AZ.
I want to thank the witnesses. This committee swears the
witnesses in. So if you will please rise and raise your right
hands. Do you swear to tell the truth, the whole truth, nothing
but the truth, so help you God?
[Witnesses sworn.]
Mr. Calvert. Let the record show that the witnesses
answered in the affirmative.
You may take your seats. We are under the 5-minute rule in
this committee, so any testimony that you may have will be
submitted for the record. We ask that you try to keep your oral
testimony to 5 minutes or less so we can have time for
questions and answers.
With that, Mr. Michaels, you may begin.
STATEMENTS OF PATRICK J. MICHAELS, PROFESSOR OF ENVIRONMENTAL
SCIENCES, UNIVERSITY OF VIRGINIA, AND SENIOR FELLOW IN
ENVIRONMENTAL STUDIES AT CATO INSTITUTE; KEITH E. IDSO, VICE
PRESIDENT, CENTER FOR THE STUDY OF CARBON DIOXIDE AND GLOBAL
CHANGE; AND CHRISTOPHER B. FIELD, STAFF SCIENTIST, CARNEGIE
INSTITUTION OF WASHINGTON, AND PROFESSOR OF BIOLOGICAL
SCIENCES, STANFORD UNIVERSITY
Mr. Michaels. Thank you, Mr. Chairman. About 100 years ago
mankind began in earnest to emit carbon dioxide into the
atmosphere, and scientists recognized even 100 years ago there
could be consequences. Svante Arrhenius, a Swedish scientist,
in 1896 published a paper in the Journal of Philosophical
Transactions, in which he calculated that doubling atmospheric
carbon dioxide would raise the mean temperature of the planet
about 5 degrees celsius. And if you read his paper carefully,
for the current concentrations that we have emitted into the
atmosphere, he is stating that we should have warmed the
temperature about 3.25 degrees celsius.
Through the course of the 20th century, people developed
more finely scaled methods to estimate climate change. By 1990,
the United Nations, in convening the Intergovernmental Panel on
Climate Change, used a suite of climate models that suggested
that the planet should have warmed about 1.8 degrees celsius as
a result of what human beings have done to the atmosphere.
The actual warming that we have seen is 0.6 degrees
celsius, or about one-third of the amount that was estimated by
the mean suite of climate models around 1990.
This chart shows temperatures over the course of the last
100 years, and estimated temperatures for the last 400 years,
along with solar activity that has been calculated by two NASA
scientists, Lean and Rind. The solar activity is the closed dot
here. You can see solar activity is as high as it has been in
the last 400 years. The conclusion, regardless of all the news
stories that we hear, Congressman, is that if this were not the
warmest decade in the last 400 years, there would be something
wrong with the basic theory of climate, which is that the sun
warms the Earth.
Now, when we examine the behavior of the temperature in the
last 50 years or so, we see something very interesting emerging
that leads one to think that human beings might be changing the
climate, because the character of the warming of the last 50
years is different than the character of the warming of the
previous 50 years. By and large, it is a warming of the coldest
air masses in the winter. Vital statistics in the United States
show these to be the deadliest air masses that we know of.
This is the temperature change since World War II in the
winter in both the northern and southern halves of the planet;
the seasons are flipped at the equator, it is the cold 6 months
of the year. You can see the very, very large warming here in
the dead of Siberia in the middle of winter, and in
northwestern North America. These are the source regions for
these very fatal and cold air masses. Elsewhere there is very,
very little warming on this chart. In fact, greenhouse theory
predicts that a cold dry atmosphere will warm a lot more than a
warm wet atmosphere.
If we take a look at the ratio of winter to summer warming,
we see something emerging. More people die in the winter, by
the way, from the weather than die in the summer. Since World
War II, we see that over two-thirds of the warming that has
occurred has occurred in the winter half year rather than the
summer half year in the northern hemisphere.
Now getting back to this notion of the warming being mainly
concentrated in these very, very cold air masses in Siberia and
northwestern North America, the next chart I really would urge
you to pay attention to. It shows the average warming trend
within these extremely cold air masses. These average about
minus 40 degrees celsius; they have warmed to about minus 38
degrees celsius. I do not hear the citizens of Russia clamoring
for a return to the climate of the Stalin era. These over here
are about minus 30 degrees celsius, maybe have warmed to about
minus 29 degrees celsius. Now the average warming in these very
cold air masses is shown in the bar chart on the right. It is
0.214 degrees C per decade, or about 2.1 degrees per 100 years.
In other words, that is how much it is warming here in these
deadly air masses.
In the rest of the northern hemisphere, the average warming
in each one of these little boxes that you see, and this is the
United Nations Climate Record, is 0.021 degrees celsius per
decade. Two-hundredths of a degree celsius per decade in the
northern hemisphere cold half year outside of Siberia and
northwestern North America.
It works out that three-quarters of the warming of the
winter half year is taking place in those very, very cold air
masses, and two-thirds of the overall warming of the last 50
years is taking place in the winter. Do the math. Most of the
warming is confined to air masses that are inherently deadly
and inherently cold.
Now, when I began, and I will be done, mercifully, shortly,
when I began I noted that the warming was not as much as was
predicted by the models that served as the basis for the United
Nations in 1990, the report. The ostensible reason for that is
something called sulfate aerosol which does not exist in the
southern half of the planet in any significant form. The idea
is that sulfate aerosols are cooling the warming that should be
occurring. Only look at the satellite temperature history from
the southern hemisphere of the planet. It is very obvious that
there is no warming in this record whatsoever. It is also very
obvious that there was a big El Nino in 1998 and that is over;
we are not having monthly press conferences now about the
temperature of the planet being warmer than heck.
Well, the sulfate argument probably does not work. And it
is doubtless that those satellite temperatures are correct.
This record here shows the satellite temperature record, in
this shaded area here that is flat, the open circles are
weather balloon records from 5,000 to 30,000 feet, and the
closed circles are ground-base temperatures. The ground-base
records are going up. The atmosphere is not warming above 5,000
feet. Every climate model that we have, and this is typical of
them, I will go back, predicts a warming in the range of 0.23
degrees celsius per decade in the entire atmosphere, all the
way up to the stratosphere. From the surface all the way to the
tropopause, an average of 45,000 feet, to be warming that much.
These are the warmings that are occurring between 5,000 and
30,000 feet, depending upon what record you use.
This is a typical computer model--and I am just about to
end--this one from the Lawrence Livermore National Laboratory.
This is north, this is south. Everywhere where it is orange or
yellow it is predicted to have warmed in the last 25 years and
then it cools in the stratosphere. There is no warming in the
last 25 years in all the records that we can find in that zone.
Now, I am going to turn the tables here and close with what
I want to call reverse argument. Let's say that all that money
that we have spent on climate change has bought us something; I
do not know what, but let us say it has bought us the fact that
we know the way the climate changes once it starts to change.
This is a series of outputs from various computer models. I
would like to draw to your attention that once the planet
starts warming, it warms at the same rate that it began to
warm. It warms at a constant rate. It does not warm at an
increasing exponential rate. There are various assumptions in
these models; some of them have sulfates in them, some of them
do not, some of them have the real way that CO2 is
changing in the atmosphere, which is the low one down here,
others do not, and we have nature since 1968 warming up the
surface temperatures of our planet.
I believe nature has already given us the answer on global
warming. There is the trend of the last third of this century
extended out under the assumptions that all the climate models
make, that the warming is a straight line. It works out to 1.3
degrees celsius over the course of the next 100 years. Because
of the winter-summer differential, it is about 1.5 degrees in
the winter, 1.1 degrees in the summer. Hard to call that a
pollutant.
Thank you very much.
[The prepared statement of Mr. Michaels follows:]
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Mr. Calvert. I thank the gentleman.
Mr. Field.
Mr. Field. Chairman Calvert, members of the committee, I
appreciate the opportunity to address this hearing. My remarks
today will focus not on the legal issues, but on the plant
physiology. I will emphasize three points. First, atmospheric
CO2 is essential for life on Earth; second, the
concentration of CO2 in the atmosphere has increased
dramatically over the last century, as a consequence of human
actions; and third, increasing atmospheric CO2 has a
mixture of positive and negative effects on plant growth, food
security, and natural ecosystems. Adding the prospect of human-
caused climate change tends to make the overall impacts more
negative. Let me explain each of these points.
First, atmospheric CO2 is essential for life on
Earth. I think we generally agree on that. Plants growth
through photosynthesis, a process that uses the energy from
sunlight to combine carbon dioxide from the air with water to
make carbohydrates plus oxygen. The carbohydrates formed
through photosynthesis feed not only the plants, but almost all
other organisms on Earth, including those that eat plants and
those that eat the animals that eat the plants. Of course,
humans are included in the group that depends on the products
of photosynthesis.
Second, the concentration of CO2 in the
atmosphere has increased dramatically over the last century, as
a consequence of human actions. As Dr. Michaels has already
explained, at the beginning of the Industrial Revolution,
before the extensive use of fossil fuel by humans, the
concentration of CO2 in the atmosphere was about 280
parts per million, or about 0.28 percent, and it has increased
by about 30 percent, so that now a little less than 1 cubic
inch of each cubic foot of the atmosphere is composed of
CO2. We know, based on measurements in ice cores,
that the current concentration of CO2 in the
atmosphere is higher than it has been at any time in the last
400,000 years.
The third point I want to make is that increasing
atmospheric CO2 has a mixture of positive and
negative effects on plant growth, food security, and natural
ecosystems. I will comment first on food production.
Most of the world's plants use a mechanism for
photosynthesis that is through two sensitives. Photosynthesis,
or CO2 fixation, increases when the CO2
concentration increases. For many crops, under current
conditions this means that crop growth rate also increases. And
in large number of experiments, crop growth under doubled
atmospheric CO2 increases by 10 to 50 percent.
The CO2 sensitivity does not apply uniformly to
all crops. Some important crops, most notably corn and sugar
cane, use a different photosynthesis pathway called C-4. For
these crops photosynthesis does not increase with increasing
CO2, and growth increases only a little bit. In the
absence of other factors, the direct effect of increased
CO2 on crop growth would very probably lead to
higher global food production. Now whether or not this is a
benefit from the perspective of U.S. agriculture will depend on
world market conditions.
It is also very short-sighted to think only of the effects
of CO2 on crop photosynthesis. At least three other
factors need to be considered. First is losses to pests.
Several studies show that insects fed plant material grown in
elevated CO2 eat more than if fed the same plants
grown at normal CO2. Thus, losses to pests could
potentially increase, or investments in pest control could
increase. Second is weeds. Weeds tend to be stimulated as much
by elevated CO2 as the crops, and especially for
crops such as corn with the C-4 photosynthesis. Many of the
major weeds have normal photosynthesis and would most likely be
more stimulated than the crops. Third, and probably most
important, is climate. Evaluating effects of CO2 on
food production without considering CO2 effects on
climate is like evaluating DDT based only on its short-term
effects on insect control. DDT is a very effective insecticide,
but its long-term impacts on other animals is so negative that
it would be a big mistake to consider the effects on short-term
insect control in isolation. The situation for CO2
is strongly parallel.
The connection between atmospheric CO2 and
climate is increasingly well-understood, with a vast body of
evidence indicating that continued increases in atmospheric
CO2 and other heat-trapping gasses will lead to
gradual warming of the Earth, the exact amount is still
somewhat uncertain. But the Earth has clearly warmed in the
last century. And the consensus of the Intergovernmental Panel
on Climate Change, which is the collaborative effort of the
world's scientists asked to evaluate climate change for the
world governments, is that this warming already has the
signature of a human caused component.
With a warming climate, many, or even all, of the
stimulatory effects of elevated CO2 on crop
photosynthesis may be eliminated. Recent models of the impacts
on U.S. agriculture over the next century, with a combination
of elevated CO2 and warming, indicate that the
negative effects of climate change, changes in temperature and
precipitation, will approximately cancel stimulatory effects of
increased CO2.
In natural ecosystems, elevated CO2 has similar
effects to that on crops, increasing photosynthesis in most
plants. In experiments where CO2 is increased, plant
growth often increases, though the growth responses tend to be
smaller, sometimes even absent in natural ecosystems. Very few
experiments have examined the combined effects of elevated
CO2 and climate change. This is an area where
additional information is critical. If I could have 1 more
minute, please.
But plant growth is not the only important property of
natural ecosystems. Features like recreational value, watershed
protection, and biological diversity are also important,
potentially sensitive to the direct and indirect effects of
elevated CO2. Changes in these values are difficult
to predict and could be highly variable from place to place,
but some results are suggestive. In studies of California
grasslands exposed to elevated CO2, weedy species,
with profoundly negative effects on grazing and recreational
values, tend to be those that are most strongly stimulated.
Many studies report large differences among species and which
ones are stimulated and which are not by elevated
CO2, and, so far, it is really difficult to have any
strong predictions of effects on elevated CO2 on
biological diversity. If the winters are weedier introduced
species, the effects on biological diversity could be strongly
negative.
In sum, atmospheric CO2 is a critical component
of the atmosphere, but increases in concentration resulting
from human actions can have both positive and negative impacts
on agriculture and on natural ecosystems. Any negative impacts
expressed through climate change will, of course, affect
sectors other than agriculture and natural ecosystems.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Field follows:]
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Mr. Calvert. I thank the gentleman.
Mr. Idso.
Mr. Idso. I am going to put a carousel in here. I was
unaware that I could use slides today, so I just ran over and
grabbed a few from my motel room.
Briefly, I would like to thank the chairmen and the
committee members for having me come out today to testify on
behalf of carbon dioxide.
Carbon dioxide is not a pollutant, contrary to what some
people may tell you. Carbon dioxide is colorless. It is
odorless, and it is a trace gas that exists in the atmosphere.
Again, you have heard that its current atmospheric
concentration is so small, it exists at only 0.036 percent.
But, again, because of mankind's industrial activities and
consumption of fossil fuels, the amount of carbon dioxide in
the air is increasing and probably will double within the next
century. So, even if it doubles, big deal. It is still going to
be a trace gas. You have already heard the preliminary argument
that carbon dioxide is essential to life on the Earth, and I
concur with that premise.
Many, many studies have looked at plant responses to
increasing carbon dioxide. This study represents nearly 1,100
observations that demonstrates what happens to plant growth
when the amount of carbon dioxide in the air is doubled.
Basically, with more carbon dioxide in the atmosphere, plant
growth is going to increase. And that is exactly what typically
occurs. And for a doubling of carbon dioxide, this particular
study showed an average increase in plant growth of 52 percent.
There are some individuals that have criticized this
positive growth response, saying that it will not be as great
due to the fact that out in natural ecosystems there are
certain environmental stresses and resource limitations that
may decrease the beneficial growth response of plants to higher
levels of carbon dioxide. However, in reviewing the literature
again, looking at nearly 300 published observations, we find
that just the opposite tends to occur. In other words, plants
benefit even more in their growth response to carbon dioxide
when they are being stressed by resource limitations or certain
environmental factors.
That brings us to global warming. There is no compelling
reason to believe that increasing atmospheric carbon dioxide
levels must be forcing temperatures upward. However, in
analyzing 42 peer-reviewed studies, it has been determined that
if the amount of carbon dioxide in the air doubles, plants can
shift their optimal growth temperature upwards by nearly 6
degrees celsius. Clearly, this upward shift in growth
temperature can more than account for any global warming that
may happen in the next hundred years, as predicted only by
climate models. In other words, plants will not be forced to
migrate to cooler regions. Instead, plants will exist at their
high temperature boundaries and grow even better than they did
before atmospheric CO2 levels rose or air
temperatures increased. So plants will maintain their
biodiversity at the warm ends of their temperature boundaries.
However, at the cool end of their temperature boundaries,
due to the warming that is happening, plants can actually
expand into new regions and begin colonization. When they
expand there, biodiversity will increase. And as herbivores
that feed upon the plants follow them into new areas, herbivore
biodiversity also increases. And then carnivores that eat the
herbivores follow along. Across the globe many of the
ecosystems will experience an increase in biodiversity.
So, in conclusion, I just want to summarize again that
carbon dioxide is vital for life on the Earth. Plants do
respond favorably when atmospheric carbon dioxide levels
increase; they do produce much more yield and fiber. Hence,
there is more agronomic production to allow for feeding and
clothing--and timber production--to provide fuel and shelter to
the increasing population of humanity.
So I would recommend to the chairmen and the panel today
that they do whatever they can within their legislative powers
to ensure that carbon dioxide levels are not restricted, and
that the amount of carbon dioxide in the atmosphere be allowed
to continue to increase to provide for the benefit of all
humanity and biodiversity as well. Thank you.
[The prepared statement of Mr. Idso follows:]
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Mr. Calvert. I thank the gentleman.
Mr. Michaels, I could not help but observe you brought a
couple of beakers with you. I thought I would ask what that is
all about.
Mr. Michaels. Actually, I often travel with these beakers,
Congressman. [Laughter.]
Let me change the slide tray, if I could. You have heard
that there is some controversy about the projections of climate
change versus reality. I would like to examine just for a
moment, or illustrate just one of the problems. This is the
Lawrence Livermore National Laboratory circulation model. I am
not picking on it; it just happens to be one that is readily
available. They all do essentially the same thing. This again
is north, this is south, and this is going up 5,000 feet, this
is the top, what we call the troposphere, about 40,000 feet.
You can see that it warms. In fact, it is predicted to warm by
the ensemble of climate models serve as the basis for the Kyoto
Protocol 0.23 degrees celsius per decade. That whole zone is
forecast to warm like that.
Well, this little beaker here can be our whole atmosphere.
What I have done here is I have put a little dye in here, I am
going to fill this up to 1,000 millibar or 1,000 milliliters,
which is the depth of the tropopause, and you can see what is
predicted to happen. That is a pretty red cylinder, isn't it?
Now what happened in the course of the last two decades is that
while this is predicted to happen, we had a warming in the
lowest regions of the atmosphere, as I mentioned in my oral
testimony. The bottom 5,000 feet warmed up. Not as much as the
whole atmosphere was forecast to warm. So this bottom 5,000
feet that is in this beaker is pinker than this.
But our understanding of climate change warms up the entire
bottom 50,000 feet. So if you want to see how far off the
projections are that serve as the basis for the Kyoto Protocol,
I will have to average this warming through the entire
atmosphere, which I am going to do right now, average the
surface warming, pour in some nice, clean, unpolluted, no
CO2--excuse me, I better not use that word
polluted--nice, clean air into our atmosphere. There is what
serves as the basis for the Kyoto Protocol, and there is
reality, Congressman. I think we have a problem. That is why I
brought these cylinders with me.
Mr. Calvert. I thank the gentleman.
Dr. Idso, you recently completed a study claiming that
higher CO2 levels will reduce world hunger, as you
were talking about. Please briefly describe the study and
assess the implications for global food security of Kyoto-style
policies.
Mr. Idso. Basically, in the food study, we used United
Nations food production data, looking at how much food was
produced in the past, and we determined how much food will
likely be produced in the future due to mankind's continuing
ingenuity and agricultural advances. We also know what the
projected human population is going to be. And assuming that we
maintain the current standard of living, any additional
increase in human population should correlate to an equivalent
increase in agricultural yield.
By restricting carbon dioxide levels according to the Kyoto
Protocol, we determined that mankind's ingenuity alone will not
produce enough agricultural yield to feed the human population.
However, if carbon dioxide levels are allowed to continue to
rise unrestricted in the atmosphere, the beneficial growth
enhancement resulting from that phenomenon, combined with
mankind's intellectual knowledge and agricultural techniques,
will make up the difference and the world will be food secure.
Mr. Calvert. That is interesting. You are almost saying
that rather than CO2 being a pollutant, it is a
beneficial gas.
Mr. Idso. That is precisely correct.
Mr. Michaels. With all due respect, Mr. Chairman, those
cold air masses kill a lot more than warm air.
Mr. Calvert. Dr. Field, to what extent does your research
show that elevated CO2 levels in general have the
following beneficial effects: Increased plant photosynthetic
rates, increased plant water use efficiency, increased plant
resistance to heat stress, raise the optimum growth temperature
for plants?
Mr. Field. Congressman, I believe it is fair to say that
the sum of approximately 3,000 studies now published in the
literature indicate that elevated CO2 has effects on
each of those properties in the direction that you have
indicated. Plants generally do better under elevated
CO2; better in terms of growth rate, in terms of the
high temperature performance, and in terms of ability to
tolerate water limitation.
I will say, however, that that does not necessarily speak
directly to the changes in plant production under a future
scenario that includes the combination of warming and elevated
CO2. The issue is that elevated CO2 helps
the plants cope with conditions that are otherwise deleterious,
but it may or may not overcome the deleterious effects.
Mr. Calvert. Yes, because it seems Dr. Idso would say, I
presume based upon your testimony and the previous question,
that rising temperatures would be more likely to enhance the
benefits of CO2 enrichment. Would that be correct,
Mr. Idso?
Mr. Idso. That is correct. Based on the research that I
have looked at, the 42 studies, there is a positive interaction
between temperature and carbon dioxide, wherein the
CO2-induced growth response is typically greater
with higher temperatures.
Mr. Calvert. Do you have any comment about that, Mr. Field?
Mr. Field. The important issue to keep in mind about the
interaction between climate change and elevated CO2
is that climate change is not just warming. Much of the world
is projected to suffer increased water shortages under a global
scenario. The lack of water and the elevated crop production
scenario all tend to depress crop production relative to what
you would expect under current conditions. And as I said in my
testimony, the current ensemble estimate is that, in general,
the beneficial effects of elevated CO2 will more or
less cancel the deleterious effects of the climate changes in
the United States. In other parts of the world, particularly in
the tropics, the effects of the warming are expected to be
greater than the effects of the elevated CO2, with
overall deleterious effects on food production.
Mr. Calvert. I presume, Mr. Michaels, you want to comment
on that?
Mr. Michaels. Yes. Carbon dioxide has increased effectively
from about 270 parts per million background from the beginning
of the Industrial Revolution to effectively about 450 today
with all the greenhouse gases in the atmosphere. We have these
projections for increased drought, that I just heard about,
interacting with the food supply. Fortunately, we do have a
record of this. I thought you might like to see this slide. The
area on the bottom is the intense drought history in North
America. What you can see is there is no change whatsoever from
1895 to now. If we take a look at the wetness in North America,
it has increased. So what we have done is we have not increased
the droughtiness, we have increased the moisture in the
atmosphere, and, by ameliorating the coldest air masses, we
have slightly lengthened the growing season. Well, North
America happens to be the world's bread basket.
So I think these arguments deserve a little bit of
attention to reality before they are tendered. Thank you.
Mr. Calvert. Mr. Ehlers.
Mr. Ehlers. I apologize that I had to go to another
committee to vote and missed the testimony, although I had read
it before coming here.
The question that is being heard today is, is
CO2 a pollutant, and does EPA have the power to
regulate it? That was addressed primarily by the attorneys in
the first panel. I take it that you are not really addressing
that so much as the issue of whether or not the increased
CO2 contributes to global warming or to global
climate change. Am I correct? And I have to ask this simply
because I was not here.
Mr. Field. That is correct.
Mr. Ehlers. That is correct. OK. And from your written
testimony, I did not reach any conclusions as to what you were
saying, other than increased CO2 promotes plant
growth. Increased CO2, according to Mr. Michaels, is
not that much of a problem. And Mr. Field, you say it may well
be a problem. Is that a fair characterization or summary of the
testimony?
Mr. Field. Yes, I agree.
Mr. Ehlers. OK. Now what I would like to get at, I am not
as concerned personally, as I mentioned earlier, about the
global warming because I think the jury is out on that one yet.
But I think the scientific jury is still open but starting to
reach some conclusions about global climate change. By that, I
mean the amount of vapor in the air, particularly the number of
clouds which have an impact on both the warming of the Earth
and the reflection back to space, the increased rain in some
locations, increased drought in others. I think one of the key
points in my mind, and I would like your comments on this, is
that it is going to be quite some time before we really
understand these effects well enough to tell what the net
impact is, particularly, the greatest difficulty is going to be
to state in some fairly precise fashion what the impact is for
certain places on the surface of the Earth. It seems to me we
are likely to have beneficial effects in a number of places, we
are likely to have deleterious effects in a number of other
areas.
I am just wondering if any one of you can lay out for me a
game plan of how you and other members of the scientific
community are going to approach this in terms of trying to pin
down, as best you can as time goes on, what these climate
change effects are. Not just what climate change takes place,
but the effects of that change. As starting from the most
certain, we know that CO2 is increasing, no question
about that, we even have a fairly good idea of the projected
rate it will increase. The next level of certainty is what is
the impact of this on global warming. The next level, what
impact is it on global climate change. And finally, the
question I am raising, is what are the specific pluses and
minuses of the climate change in various locations of the
Earth. Now, what would be the program to determine that?
Roughly, what is the time scale of knowing results well enough
so that we can take legislative action?
Mr. Field. Congressman, I think you have characterized the
problem in a very eloquent way. The easiest problem to get a
quantitative handle on is the CO2 rise. The second
problem in terms of increasing difficulty is whether or not
there has been warming. Dr. Michaels has already addressed
that, and, I think importantly, you could see from his results
that the actual warming to date is within the range of the
climate model predictions. The next most difficult problem that
we still have not addressed in a comprehensive way is the whole
suite of changes in climate that accompany the warming. And the
most difficult challenge is nailing down the spatial locations
of the climate variations.
The biggest component of progress in terms of all of those
is to get the climate models to work in a way so that they
accurately reflect the physical processes in the environment,
including a number of feedbacks that have been difficult to
represent. There has been tremendous progress over the last 10
years or so, so that climate models are accurately reproducing
temperatures. The best models are very, very close to the
observed record. But I think the climate community is also very
clear about the prospect or rapid increases in the accuracy of
regional predictions, which will probably not come within the
next few years. I think we are looking out at least a period of
a decade until we can be confident about regional changes
either in temperature or in precipitation.
Mr. Ehlers. Just a quick question on that. Is that because
of the need for larger computers, or is it because of
deficiencies in the model, or is it because we have too course
a grid in many parts of the globe?
Mr. Field. There are a number of factors that contribute to
it. Part of it is that the climate models are, as you know,
very, very complicated computational problems and we have been
working at the very limit of the ability of the super computers
to process them. Another limitation, however, has been that the
observational evidence on the nature of some of the feedback
mechanisms that could be very powerful is still incomplete and
we need additional observations. Many of those are coming from
recent satellites launch by NASA and the European Space Agency.
NASA is planning major launches in the next 2 years that should
address a number of these mechanisms. And it is really the
feedback between the improved observations and advances in the
computational power that will let us address the questions over
the next few years.
Mr. Michaels. Congressman, if I could----
Mr. Ehlers. Yes.
Mr. Michaels. Let me just show you something that I showed
earlier that I think you are going to find quite interesting.
This is a suite of general circulation climate models. You
probably recognize some of these acronyms here. That is
National Center for Atmospheric Research. That is the British
Hadley Center. This is the Geophysical Fluid Dynamics
Laboratory. And each one of these models has different
assumptions.
This one here, down here, I adjusted for the actual
increase in carbon dioxide that has been observed in the last
30 years. These models tend to use too large of an increase;
they tend to use 1 percent per year. The actual integrated
number allowing for all the trace gases, and this is according
to James Hansen from NASA, is actually about 0.4 percent per
year over the course of the last couple of decades.
But what I want to draw your attention to, Congressman, as
a scientist, what you see here is that the functional form of
the response of each of these is the same, isn't it? They are
all straight lines. So all that differs between these models is
the slope of the line. Now, having established that, I will
then submit to you what these models say is that once
greenhouse warming begins, it takes place as a straight line.
Remember, these models all have exponential forcings in them,
Congressman; they have percent per year. So you have an
exponential change in the greenhouse forcing but you get a
linear change in the temperature.
The United Nations has said that there is a discernible
human influence on global climate. Let us assume what people
think they said is what they said, that changing the greenhouse
effect is altering the climate. The next question is, is the
temperature changing in a linear fashion, and, if it is, then
nature has decided the slope of this line. And she has. It is
this line right down here, at 1.3 degrees celsius per decade.
Unless, Congressman, the functional form of every climate model
is wrong. So I think we know the answer now. Thank you.
Mr. Ehlers. Let me just ask one related question in terms
of the fact that this is a linear----
Mr. Michaels. They all are.
Mr. Ehlers. Even though the forcing functions, as you said,
are exponential in nature. Now, does this have to do with the
fact that CO2, as an example, is pretty well opaque
already and so that it----
Mr. Michaels. It eventually saturates for each given wage
length, that is right.
Mr. Ehlers. They are logarithmic because you are just
dealing in the wings of the curve, is that correct?
Mr. Michaels. Correct.
Mr. Ehlers. So that would explain why you get a linear
function.
Mr. Michaels. Plus the oceanic thermal lag, also.
Mr. Ehlers. OK.
Mr. Calvert. Gentlemen, we probably have time for Mr. Barr
to ask a couple of questions, and then we have to go for a
vote.
Mr. Ehlers. Oh, I am sorry. I thought he had already.
Mr. Calvert. No, he has not asked.
Mr. Ehlers. In that case, I will withhold the rest of my
questions.
Mr. Barr. I will yield you some time since you obviously
know more about linear functions, exponential functions, and so
forth, all of which have nothing to do with the real world of
politics. [Laughter.]
We have this marvelous exhibit here that seems self-
evident. I am sure that if a picture is worth 1,000 words, this
was worth, at least to myself and I suspect the chairman, who
are not as educated as you are, Professor, in the
technicalities of this stuff, it is probably worth about
10,000. But that certainly does not stop politicians from
completely ignoring it. It may have something to do with the
rose-colored glasses they wear. I think that would cancel out
the differences in coloration in the tubes there. [Laughter.]
But it really is very, very interesting. I appreciate, Mr.
Chairman, you and Chairman McIntosh bringing these two panels
of legal experts and scientific experts here today.
In listening to the different conversations here, I think I
understood Dr. Field to contend that a warmer climate may
cancel out many, or even all, of the benefits of the
CO2 enrichment that you discussed, I would just ask
you, Mr. Idso, would rising temperatures be more likely to
negate or enhance the benefit of CO2 enrichment?
Mr. Idso. Based on all the literature that I have seen
published out there, in the clear majority, rising temperatures
would enhance the CO2 benefit. In cases where it
negates some of the benefit, what I have seen, that negating is
just very small, so there are still net positive gains in the
long run. You just do not have as great an increase, so it
would be slightly reduced by the high temperature in those few
cases.
Mr. Barr. And I presume that these studies that you are
talking about are based on a number of different experts and
studying scientific data over long periods of time and with all
sorts of variables and so forth?
Mr. Idso. With respect to temperature, there are 42 studies
that I am aware of that I have actually looked at and analyzed.
The literature is just now looking at different types of
interactions. You saw earlier, I actually put the slide up
showing the interactive growth response of plants to elevated
carbon dioxide when they lacked water. In those cases where
water is limiting plant growth, you do not see a cancellation
of the CO2-induced growth benefit. Typically, the
growth benefit is even greater when plants are lacking water in
the soil. So you do not see it negating or canceling out their
positive growth responses to atmospheric CO2
enrichment.
Mr. Barr. Was this discussed in that great scientific
treatise ``Earth in the Balance''?
Mr. Idso. Probably not.
Mr. Field. The answer is, no.
Mr. Barr. I did not think so.
Unfortunately, Mr. Chairman, and this is another reason why
it is good to have this hearing today, these findings and these
conclusions do not make the headlines of the papers, only the
scare stories about global warming and so forth do. So I
appreciate all three of you gentlemen bringing your expertise
here and, through you, the expertise of many of your colleagues
reflected in these studies. Thank you all very much.
Thank you, Mr. Chairman.
Mr. Calvert. I thank the gentleman.
I thank the witnesses for their testimony today, and those
in the audience who attended. It was an interesting hearing. We
are adjourned.
[Whereupon, at 4:52 p.m., the subcommittees were adjourned,
to reconvene at the call of their respective Chairs.]
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