Is carbon dioxide a pollutant like lead, mercury, and particulates? Should the EPA regulate it as a result? These two questions are verytough to answer due to both the legality and the complexity of thecarbon dioxide issue. In particular, carbon dioxide is a source thatcomes from many different sources and EPA regulation might beproblematic for some states and industries which are fossil fueldependent. Consequently, whether the EPA should regulate carbon dioxide emissions is not going to be a clear-cut or easy answer because itdepends on many factors.
First and foremost, whether EPA should regulate carbon dioxide emissions depends on whether Congress is willing to do so. The failure of theWaxman-Markey climate bill in the Senate suggests that the answer isperhaps not. In particular, EPA administrator Lisa Jackson, opened thedoor to "reconsider a Bush administration decision not to regulate carbon dioxide emissions from new coal-burning power plants. The White House signaled that it fully supported Ms. Jackson’s approach,deferring to her to discuss the administration’s response to the Supreme Court case Massachusetts V. EPA." ThisSupreme Court case stated the EPA has the right to regulate carbondioxide emissions so the question of whether the agency has the legalauthority to do so is not going to be an issue.
However, despite the most recent failure with Waxman-Markey and thekicking of the issue down the road at least at the congressional level,it appears the Obama administration unlike its predecessor is willing to use the EPA to regulate carbon dioxide as a pollutant, which itcertainly is. Yet, Congress particularly Representative John D Dingell "said that the regulation of carbon dioxide emissions by the EPA would set off a ‘glorious mess’that would resonate throughout the economy.’" In essence, it is prettyclear having the EPA regulate carbon dioxide would not be preferable asthey may have a one-size-fits-all approach to carbon dioxide regulations without taking into account individual state needs. In the case ofRepresentative Dingell of Michigan, his state is home to the autoindustry and his concern is how such regulations would impact jobs inhis state.
Nevertheless, carbon dioxide is a pollutant and Congress had theirchance to regulate it with Waxman-Markey or some similar legislation. However, due to Congress’ inability to come to a solution on how toregulate carbon dioxide, the issue remains unresolved legislatively even though many acknowledge it is a pollutant that should not gounregulated. The EPA may need to regulate carbon dioxide in the absence of congressional action. Perhaps they can do so by having flexibleregulatory rules and structures in place to take into account individual state needs. However, for too long Congress has not been able to act,so may be it is time for the EPA to do so in its absence.