One common complaint about U.S. EPA's efforts to regulate greenhouse gases ("GHGs") centers on the international scope of climate change and the corresponding problems with trying to address the issue in a single jurisdiction.
Now, with a February 19, 2013 administrative petition filed by the Institute for Policy Integrity, there is a twist to this story. The petition urges EPA to regulate GHGs under authority that Congress already provided for addressing "International air pollution" at Section 115 of the federal Clean Air Act (42 USC 7415). While Section 115 is often overshadowed by some of its neighboring statutory provisions, its view beyond the U.S. border arguably enlarges the set of potential "harms" that EPA or, interestingly enough, the Secretary of State may cite to justify action. While there are a host of challenges to pursuing GHG reductions in reliance on Section 115, the petition may provide an interesting litmus test for the administration's commitment to and creativity in addressing GHGs.
That said, some Section 115 shortcomings may prove difficult to avoid. For example, in the context of California's ambitious Cap-and-Trade program, some have asked whether shutting down a regulated facility in California is effective at reducing GHG emissions if the shuttered operation simply relocates to a neighboring state (or country) and then transports that same product (via truck or rail) back to the same California customers (i.e., an issue sometimes referred to as "leakage"). If the relocated operation's GHG emissions remain unchanged, the net GHG emissions to the atmosphere may increase due to the additional transportation now required. Similar concerns will likely impact any call to regulate U.S. businesses if their competitors do not face equal restrictions.
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