It’s not as well-known as the Clean Air Act but the 1976 Toxic Substances Control Act can and must be used to control greenhouse gases. That’s why we’re petitioning the EPA.
Reprinted by permission of the Washington Monthly
It was a mixed summer for environmental policy. The Inflation Reduction Act, signed by President Joe Biden last month, included several provisions favoring fossil fuel development. Still, the IRA’s $370 billion investment in clean energy won plaudits from corporate leaders, big-green environmental groups, and even Vermont’s Bernie Sanders, who deemed the package an “important step forward” despite its “ugly giveaways” to industry.
That “important step forward” theme was undergirded by several preliminary analyses from mainstream think tanks that predicted that the package could help bend the U.S. greenhouse gas emissions curve downward, at least a bit, and thus accelerate a 17-year trend. Much depends on its implementation by Biden’s talented climate team.
But even if the IRA’s carrots-over-sticks approach turns out to be a transformative moment in reshaping industrial policy, far more will be required to secure “net-zero emissions no later than 2050”—the goal set out in The Long-Term Strategy of the United States issued by the White House and State Department last year.
The Environmental Protection Agency has been working hard since Biden’s inauguration on upgraded rules to restrict greenhouse gas pollution from power plants and transportation. But the Agency’s efforts were complicated in late June when a divided Supreme Court issued its decision in West Virginia v. EPA. Writing for the majority, Chief Justice Roberts took on EPA’s Obama-era Clean Power Plan, a never-implemented Clean Air Act rule that aimed to reduce the energy sector’s reliance on dirty fuels, particularly coal. The Court invalidated the Clean Power Plan for fear that the Biden Administration could resurrect it and on the ground that novel and far-reaching federal regulations that implicate “a significant portion of the American economy” may not be justified by vague statutory language even if the language in question is part of the Clean Air Act.
Justice Kagan, in dissent, excoriated the majority for appointing itself “instead of Congress or the expert agency—the decisionmaker on climate policy” and observed: “I cannot think of many things more frightening.”
On June 16, on behalf of renowned climate scientist James E. Hansen and other experts, I filed our petition to the EPA to phase out greenhouse gases and reduce their major sources. The Toxic Substances Control Act (TSCA) is at the heart of the petition.
TSCA is a bedrock environmental law, passed in 1976 and substantially strengthened at several junctures—most recently in 2016, to protect the public from existing chemicals that threaten public health or the environment. Under TSCA, Congress sought to ensure a more comprehensive and systematic approach to control pollution, including by providing EPA with “adequate authority” to restrict chemical substances that “present an unreasonable risk of injury to health or the environment.” GHG pollution, including carbon dioxide (CO2) and methane emissions, presents an unreasonable risk.
TSCA is a general chemical safety law. Congress recognized in 1976 that “[p]resent authorities for protecting against and regulating hazardous chemicals are fragmented and inadequate,” including the Clean Air Act, Clean Water Act, the Occupational Safety and Health Act, and the Consumer Product Safety Act. And so, it decided to confront head-on the “serious risks of harm to the health of  people and [the] environment” stemming from PCBs, asbestos, vinyl chloride, and other chemicals.
EPA is slated to rule on our petition this week. If it determines that GHG pollutants present such an unreasonable risk, it will be required, by law, to “promptly commence an appropriate proceeding” to develop a federal rule. That rule should impose limits, including, we think, via an efficient and effective rising fee on carbon, until the point that such “chemical substances. . . no longer present such risk.”
EPA action is critical. The science in our petition establishes that humanity has already overshot the safe level of atmospheric CO2, methane, and other greenhouse gases. Tinkering at the margins will not do, and no other statute confers sufficient authority to get this done.
More than a score of scientists, at least one eminent conservative legal scholar, over a thousand people, and nearly 100 groups have endorsed our approach. But still, under West Virginia, is our proposed use of TSCA too novel? On the contrary: It carries a 44-year-old pedigree. Indeed, EPA commenced a phase-out of chlorofluorocarbons (CFCs) in 1978 under a Toxic Substances Control Act rule, on the ground not only that CFCs deplete Earth’s protective ozone layer but also that those chemicals impose “adverse effects [on] Earth’s temperature . . . and changes in climate.” [Download 7.4MB PDF]
Moreover, the District of Columbia Circuit court, in Mexichem Fluor v EPA (2017), determined that while EPA retained Clean Air Act authority to control ozone-depleting substances, it could not under those same provisions restrict hydrochlorocarbons (HFCs) – a category of powerful greenhouse gases. But the D.C. Circuit also pointedly observed that the Agency retains other authority “to directly regulate non-ozone-depleting substances that are causing harm to the environment.” The court specifically cited the Toxic Substances Control Act as such other authority. The Mexichem majority opinion was written by then Circuit Judge Brett Kavanaugh.
I write from western Oregon, where climate-induced wildfires coupled with irregular east winds now fill the entirety of the Willamette basin with dark, acrid smoke. And so, children must walk to school under a distinctly orange-hued sun when it appears at all. Across the nation, recurrent waves of heat drive people indoors. These and other climate extremes will become more frequent and severe until our country, and others get serious about our common future.
EPA should act to fashion an orderly and efficient phase-out of GHG pollution and removal of legacy emissions within reach of U.S. law. The Toxic Substances Control Act affords the agency the most-secure legal foundation upon which to build. Step one is to grant our petition.
The writer is executive director and general counsel to Climate Protection & Restoration Initiative (CPRclimate.org) and the long-time legal and policy advisor to James Hansen.