(If) Things Fall Apart: Searching for Optimal Regulatory Solutions to Combating Climate Change Under Title I of the Existing CAA if Congressional Action Fails

Abstract

If legislative prospects for a national climate change bill fail, EPA retains a number of options under the existing CAA to create a cap-and-trade program that could, in many ways, mimic a congressionally created regime. Under Title I in particular, EPA could turn to the NAAQS program (§§107-110) or the new source performance standards (NSPS) and existing source regulation (§111(b) and (d)). Various legal constraints, however, may be imposed upon these different statutory hooks. Examining the interplay between these regulations suggests that EPA may need to move in an incremental fashion, given the uncertain statutory authority and legislative process.

Keywords: clean air act, climate change, cap and trade, NAAQS, NSPS