Statement of Doug Kendall, President of the Constitutional Accountability Center

FOR IMMEDIATE RELEASE 4/17/2009 – The Obama Administration rightly decided today to follow the law and begin regulating greenhouse gases under the Clean Air Act. With the approval of this long-awaited “endangerment finding,” the Administration complies with the Supreme Court’s 2007 mandate in Massachusetts v. EPA – decided two years ago this month – and makes an essential first step towards a comprehensive federal response to global warming.

In less than 100 days in office, the Obama EPA has jump-started U.S. climate policy, removing several of the unjustifiable hurdles the Bush Administration placed in front of federal and state emissions reduction strategies. Today’s finding will mean the powerful provisions of the Clean Air Act, aimed at reducing emissions of harmful air pollutants, will be applied to emissions of global warming gases. It further means that emissions reductions will come even if Congress is delayed, or fails entirely, in passing its own legislation to regulate greenhouse gases.

Of course, Congress has the power to pass comprehensive, flexible climate legislation, such as a cap-and-trade bill, rather than rely on the rigid provisions of the Clean Air Act. We certainly hope it will use this power quickly, however, if history is any guide, it will be up to the EPA to prod Congress to take action through use of existing authority. Today’s decision is a critical step in encouraging Congress to move swiftly on climate change, because once industry actors realize that greenhouse gas regulation is inevitable – either via executive branch action or via a “patchwork” of state policies – they will soon be demanding that Congress adopt a nationwide, flexible policy.

That is the history of federal legislation in this country: industry fights environmental legislation tooth and nail until they see it as inevitable. Once that occurs, business comes to the negotiating table and Congress is quick to hammer out a deal. If President Obama hopes to sign a strong cap-and-trade bill in his first term, he should absolutely be using his existing authority under Clean Air Act, as well as promoting state and local climate policies. Indeed, this is the only way federal legislation is likely to come into being. The President is therefore to be commended today for overseeing this endangerment finding and putting the country on a path toward clean energy.

Doug Kendall is President of Constitutional Accountability Center (CAC), a law firm, think tank and action center based in Washington DC. He co-authored a brief in Massachusetts v. EPA on behalf of clients including the U.S. Conference of Mayors, and the National Association of Counties. As part of its Global Warming, Federalism and the Court’s project, CAC currently represents a coalition of state and local government clients in defending the California global warming emissions rule for automobiles against industry challenges.