By Jonathan R. Nash, contributor - 06-16-14 06:30 AM EDT
In its proposed new regulations, the Environmental Protection Agency (EPA) estimates that many of the benefits of its mandate will arise not from the direct benefits of lower levels of carbon emissions, but from so-called health "co-benefits" — benefits of reductions in the emission of other pollutants (particulate matter and ozone) that come about as a byproduct of carbon emission reductions. It is certainly the case that the EPA — and government in general — should consider ancillary benefits that result from regulation. However, when the lion's share of a regulation's benefits arises from co-benefits, it looks as though the tail is wagging the dog. This lack of regulatory transparency is problematic for two reasons. First, by eschewing direct regulation of the co-pollutants under the Clean Air Act, the EPA leaves itself open to the charge that it is playing politics rather than engaging in reasoned decision-making. Indeed, opponents have assailed the EPA for waging war on coal with the proposed rule. Second, by promulgating a rule that generates more co-benefits than direct benefits — and by emphasizing that fact in promoting the rule — the EPA effectively marginalizes the problem of climate change.
Congress generally designed the Clean Air Act so that the EPA would regulate pollutants on an individual basis; at least one reason for this choice was to foster transparent debate over whether, and how best, to regulate particular pollutants. With its proposed rule, the EPA seems to be more concerned with addressing pollution from coal but under the rubric of climate change regulation. To be sure, there are strong arguments in favor of more stringent environmental regulation of coal: Coal combustion does impose substantial health costs, and many heavily polluting coal-fired power plants today remain in service far beyond the predicted end of their lives. That there is merit in the idea, however, does not mean that the idea should be floated openly.
The EPA's attempt to garner political support for its proposed carbon regulation actually casts climate change as a less-important problem than the administration has repeatedly asserted that it is. The absence of adequate regulation over co-pollutants makes carbon regulation appear more necessary. In some of the EPA's models, the co-benefits of carbon regulation dwarf the direct climate change benefits. Indeed, the difference in magnitude could be said to be even larger than it appears, insofar as the EPA models (1) consider the global direct benefits of carbon reduction but only the domestic co-benefits, and (2) generally discount the co-benefits more heavily than the direct benefits. The EPA thus is justifying — or at least selling — carbon regulation through indirect benefits. This strategy may bring on board as supporters people who doubt the reality of anthropogenic climate change, but it begs the question: If climate change is truly insurmountable and raises the possibility of truly catastrophic harm, why are the direct benefits of climate change regulation much smaller than the co-benefits? In an effort to gain political support, the EPA and the administration risk undermining the perception that climate change is the pressing environmental challenge that demands our immediate action and attention.
Nash is a professor at Emory University School of Law. He specializes in the study of environmental law, legislation and regulation, and the federal courts and judiciary. Follow him@JonathanRNash.
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