IS CO2 A POLLUTANT AND DOES EPA HAVE THE POWER TO REGULATE IT? JOINT HEARING BEFORE THE SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND REGULATORY AFFAIRS OF THE COMMITTEE ON GOVERNMENT REFORM AND THE SUBCOMMITTEE ON ENERGY AND EVIRONMENT OF THE COMMITTEE ON SCIENCE HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS FIRST SESSION OCTOBER 6, 1999 Committee on Government Reform Serial No. 106–89 Committee on Science Serial No. 106–66 Printed for the use of the Committee on Government Reform and the Committee on Science ( Available via the World Wide Web: http://www.house.gov/reform U.S. GOVERNMENT PRINTING OFFICE WASHINGTON 62–900 CC VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00001 : 2000 Fmt 5011 Sfmt 5011 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 COMMITTEE ON GOVERNMENT REFORM DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California CONSTANCE A. MORELLA, Maryland TOM LANTOS, California CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, JR., West Virginia MAJOR R. OWENS, New York ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York JOHN M. MCHUGH, New York STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania JOHN L. MICA, Florida PATSY T. MINK, Hawaii THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York DAVID M. MCINTOSH, Indiana ELEANOR HOLMES NORTON, Washington, MARK E. SOUDER, Indiana DC JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania STEVEN C. LATOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland MARSHALL ‘‘MARK’’ SANFORD, South DENNIS J. KUCINICH, Ohio Carolina ROD R. BLAGOJEVICH, Illinois BOB BARR, Georgia DANNY K. DAVIS, Illinois DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts ASA HUTCHINSON, Arkansas JIM TURNER, Texas LEE TERRY, Nebraska THOMAS H. ALLEN, Maine JUDY BIGGERT, Illinois HAROLD E. FORD, JR., Tennessee JANICE D. SCHAKOWSKY, Illinois GREG WALDEN, Oregon ——— DOUG OSE, California BERNARD SANDERS, Vermont PAUL RYAN, Wisconsin (Independent) HELEN CHENOWETH-HAGE, Idaho DAVID VITTER, Louisiana DAVID SUBCOMMITTEE ON KEVIN BINGER, Staff Director DANIEL R. MOLL, Deputy Staff Director A. KASS, Deputy Counsel and Parliamentarian CARLA J. MARTIN, Chief Clerk PHIL SCHILIRO, Minority Staff Director NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, REGULATORY AFFAIRS AND DAVID M. MCINTOSH, Indiana, Chairman PAUL RYAN, Wisconsin DENNIS J. KUCINICH, Ohio BOB BARR, Georgia TOM LANTOS, California LEE TERRY, Nebraska PAUL E. KANJORSKI, Pennsylvania GREG WALDEN, Oregon BERNARD SANDERS, Vermont HELEN CHENOWETH, Idaho HAROLD E. FORD, JR., Tennessee DAVID VITTER, Louisiana EX OFFICIO DAN BURTON, Indiana HENRY A. WAXMAN, California MARLO LEWIS, JR., Staff Director BARBARA F. KAHLOW, Professional Staff Member GABRIEL NEIL RUBIN, Clerk ELIZABETH MUNDINGER, Minority Counsel (II) VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 III Page COMMITTEE ON SCIENCE HON. F. JAMES SENSENBRENNER, JR., (R–Wisconsin), Chairman SHERWOOD L. BOEHLERT, New York RALPH M. HALL, Texas, RMM** LAMAR SMITH, Texas BART GORDON, Tennessee CONSTANCE A. MORELLA, Maryland JERRY F. COSTELLO, Illinois CURT WELDON, Pennsylvania JAMES A. BARCIA, Michigan DANA ROHRABACHER, California EDDIE BERNICE JOHNSON, Texas JOE BARTON, Texas LYNN C. WOOLSEY, California KEN CALVERT, California LYNN N. RIVERS, Michigan NICK SMITH, Michigan ZOE LOFGREN, California ROSCOE G. BARTLETT, Maryland MICHAEL F. DOYLE, Pennsylvania VERNON J. EHLERS, Michigan* SHEILA JACKSON-LEE, Texas DAVE WELDON, Florida DEBBIE STABENOW, Michigan GIL GUTKNECHT, Minnesota BOB ETHERIDGE, North Carolina THOMAS W. EWING, Illinois NICK LAMPSON, Texas CHRIS CANNON, Utah JOHN B. LARSON, Connecticut KEVIN BRADY, Texas MARK UDALL, Colorado MERRILL COOK, Utah DAVID WU, Oregon GEORGE R. NETHERCUTT, JR., Washington ANTHONY D. WEINER, New York FRANK D. LUCAS, Oklahoma MICHAEL E. CAPUANO, Massachusetts MARK GREEN, Wisconsin BRIAN BAIRD, Washington STEVEN T. KUYKENDALL, California JOSEPH M. HOEFFEL, Pennsylvania GARY G. MILLER, California DENNIS MOORE, Kansas JUDY BIGGERT, Illinois VACANCY MARSHALL ‘‘MARK’’ SANFORD, South Carolina JACK METCALF, Washington SUBCOMMITTEE ON ENERGY AND ENVIRONMENT KEN CALVERT, California, Chairman CURT WELDON, Pennsylvania JERRY F. COSTELLO, Illinois** JOE BARTON, Texas MICHAEL F. DOYLE, Pennsylvania DANA ROHRABACHER, California JAMES A. BARCIA, Michigan VERNON J. EHLERS, Michigan EDDIE BERNICE JOHNSON, Texas DAVE WELDON, Florida ZOE LOFGREN, California GARY MILLER, California* JOSEPH M. HOEFFEL, Pennsylvania JUDY BIGGERT, Illinois VACANCY JACK METCALF, Washington RALPH M. HALL, Texas+ F. JAMES SENSENBRENNER, JR., Wisconsin+ VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 CONTENTS Page Hearing held on October 6, 1999 ............................................................................ Statement of: Guzy, Gary S., General Counsel, U.S. Environmental Protection Agency; James Huffman, dean, Lewis and Clark Law School; Peter Glaser, esq., Shook, Hardy, and Bacon; and Jeffrey G. Miller, professor of law, Pace University School of Law ............................................................ Michaels, Patrick J., professor of environmental sciences, University of Virginia, and senior fellow in environmental studies at Cato Institute; Keith E. Idso, vice president, Center for the Study of Carbon Dioxide and Global Change; and Christopher B. Field, staff scientist, Carnegie Institution of Washington, and professor of biological sciences, Stanford University ...................................................................................................... Letters, statements, et cetera, submitted for the record by: Calvert, Hon. Ken, a Representative in Congress from the State of California: Letter dated October 5, 1999 .................................................................... Prepared statement of ............................................................................... Field, Christopher B., staff scientist, Carnegie Institution of Washington, and professor of biological sciences, Stanford University, prepared statement of ................................................................................................... Glaser, Peter, esq., Shook, Hardy, and Bacon, prepared statement of ........ Guzy, Gary S., General Counsel, U.S. Environmental Protection Agency, prepared statement of ................................................................................... Huffman, James, dean, Lewis and Clark Law School, prepared statement of ..................................................................................................................... Idso, Keith E., vice president, Center for the Study of Carbon Dioxide and Global Change, prepared statement of ................................................ McIntosh, Hon. David M., a Representative in Congress from the State of Indiana, prepared statement of ............................................................... Michaels, Patrick J., professor of environmental sciences, University of Virginia, and senior fellow in environmental studies at Cato Institute, prepared statement of ................................................................................... Miller, Jeffrey G., professor of law, Pace University School of Law, prepared statement of ........................................................................................ 1 11 78 65 8 99 29 14 51 106 4 81 46 (V) VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00005 Fmt 5904 Sfmt 5904 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 IS CO2 A POLLUTANT AND DOES EPA HAVE THE POWER TO REGULATE IT? WEDNESDAY, OCTOBER 6, 1999 HOUSE OF REPRESENTATIVES, SUBBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND REGULATORY AFFAIRS, COMMITTEE ON GOVERNMENT REFORM, JOINT WITH THE SUBCOMMITTEE ON ENERGY AND ENVIRONMENT, COMMITTEE ON SCIENCE, Washington, DC. The subcommittees met, pursuant to notice, at 2:39 p.m., in room 2247, Rayburn House Office Building, Hon. David M. McIntosh (chairman of the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs) presiding. Present from the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs: Representatives McIntosh, Barr, and Kucinich. Present from the Subcommittee on Energy and Environment: Representatives Calvert, Costello, and Ehlers. Staff present from the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs: Marlo Lewis, Jr., staff director; Barbara F. Kahlow and Joel Bucher, professional staff members; Jason Hopfer, counsel; Gabriel Neil Rubin, clerk; Elizabeth Mundinger, minority counsel; and Earley Green, minority staff assistant. Staff present from the Subcommittee on Energy and Environment: Harlan Watson, staff director; Rob Hood and Jean Fruci, professional staff members; Jeff Donald, staff assistant; and Marty Ralston, minority staff assistant. Mr. MCINTOSH. The subcommittees shall come to order. First, let me say thank you to my colleague from California for co-chairing today’s hearing. This should be a thought-provoking and indepth hearing, since we will be examining questions that go to the heart of the debate about the Kyoto Protocol and the administration’s climate change policies. These questions are: Is carbon dioxide a pollutant, and does EPA have the power to regulate it? The central premise of both the Kyoto Protocol and the administration’s policies is the theory of catastrophic global warming. According to this theory, the buildup of greenhouse gases—principally CO2 from fossil fuel combustion—will enhance the greenhouse effect, warm the Earth’s atmosphere, and, thus, potentially, or even probably, increase the frequency and severity of extreme weather events, accelerate sea level rise, and spread tropical diseases. More simply put, Kyoto proponents contend that CO2—a clear, odorless gas and the fundamental nutrient of the planetary food (1) VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 2 chain—is, in fact, a pollutant. Administration officials, for example, often say their policies are needed to combat ‘‘greenhouse pollution.’’ The hypothesis that CO2 emissions constitute greenhouse pollution draws it strongest support from mathematical simulations of the global climate system, known as the general circulation models. Now, although impressive in their complexity, the models repeatedly fail to replicate current and past climate; and as computing power and modeling techniques have improved, the amount of projected global warming has declined. The empirical side of the issue is much clearer. Hundreds of laboratory and field experiments show that nearly all trees, crops, and other plants raised in CO2enriched environments grow faster, stronger, and with greater resistance to temperature and pollution stress. So, to borrow a well-known phrase from the UN’s Intergovernmental Panel on Climate Change, today’s hearing will consider where the ‘‘balance of evidence’’ lies. Does the balance of scientific evidence suggest that CO2 emissions are endangering public health, welfare, and the environment? The subcommittee will also examine whether EPA has the power under the Clean Air Act to regulate CO2. EPA claims that it does have such authority, most notably in former EPA General Counsel Jonathan Cannon’s April 10, 1998 memorandum, entitled, ‘‘EPA’s Authority to Regulate Pollutants from Electric Power Generation Sources.’’ The Cannon memorandum was, and remains, controversial. In his appearance before our subcommittee, he reasserted that power to regulate CO2. Regulating CO2 to curb greenhouse pollution is the sum and substance of the Kyoto Protocol. So, the Cannon memorandum implies that EPA already has the power to implement Kyoto-style emission reduction targets and timetables, as if Congress, when it enacted and amended the Clean Air Act, tacitly ratified the Kyoto Protocol in advance. Several questions spring to mind, which I trust we will explore today. First, does the Clean Air Act expressly confer on EPA the power to regulate CO2? On an issue of longstanding controversy like global warming, is it even conceivable that Congress would have delegated to EPA the power to launch a vast new regulatory program, a program potentially costing hundreds of billions of dollars, without ever saying so in the text of the statute? The Clean Air Act mentions CO2 and global warming only in the context of non-regulatory activities such as research and technology development. How then can EPA claim that the act clearly and unambiguously provides the authority to regulate CO2? Second, does CO2 fit into any of the regulatory programs already established under the Clean Air Act? The Cannon memorandum suggests, for example, that EPA may regulate CO2 emissions under the National Ambient Air Quality Standards [NAAQS] program. But that program was designed to address local air quality problems, not a global phenomenon like the greenhouse effect. If EPA were to set a NAAQS for CO2, for example, that is below the current atmospheric level, the entire United States would be out of attainment. Every community within the United States would be out of attainment if that NAAQS standard were adopted. Even if every VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 3 factory and power plant were to shut down, this would continue to be the case because it is a global phenomenon. Conversely, if EPA were to set a NAAQS standard that is above the current level, the entire country would be in attainment, even if CO2 emissions suddenly doubled in many of our communities. So NAAQS is not a tool well-crafted to attack the problem of global warming. The attempt to regulate CO2 through the NAAQS program would appear to be an absurd and futile exercise. This suggests that Congress, when it enacted the program, never intended EPA to regulate CO2. The third question that I have, does the legislative history of the Clean Air Act Amendments of 1990 expressly support or, in fact, contradict EPA’s claim of authority to regulate CO2? Some may argue that Congress’ deliberate rejection of greenhouse gas regulatory provisions in the 1990 amendments is irrelevant, because declining to mandate such regulation is not the same as prohibiting it. But this is tantamount to saying that EPA has whatever authority Congress does not expressly withhold. That is simply turning the entire principle of administrative law on its head. Under our system of government, agencies only have the powers that Congress specifically delegates to them. The Clean Air Act is a carefully structured statute with specific titles that create specific regulatory programs to accomplish specific objectives. It is not a regulatory blank check. EPA contends that CO2 falls within the Clean Air Act’s formal or technical definition of ‘‘pollutant‘‘ as a substance that is ‘‘emitted into or otherwise enters the ambient air.‘‘ But this hardly suffices to settle the question of whether Congress designed and intended any of the Clean Air Act’s regulatory programs to encompass CO2. Before I turn over the proceedings to Chairman Calvert, I would like to welcome our witnesses. Representing the Clinton administration on the question of EPA’s legal authority is EPA General Counsel Gary Guzy. Welcome, Mr. Guzy. I appreciate your willingness to step up to the plate and address these tough questions. Mr. Peter Glaser, of the law firm of Shook, Hardy, and Bacon; Professor James Huffman, who is Dean of the Lewis and Clark Law School; and Professor Jeffrey Miller of Pace University School of Law will also speak to the question of EPA’s legal authority. Thank you, gentlemen, for participating in this forum. I would also like to welcome the members of the scientific panel: Dr. Patrick Michaels, professor of Environmental Sciences at the University of Virginia and senior fellow in Environmental Studies at Cato Institute; Dr. Keith Idso, vice president of the Center for the Study of Carbon Dioxide and Global Change; and Dr. Chris Field, who is a staff scientist at the Carnegie Institution. With that, let me turn over the opening statement to Mr. Calvert. Welcome. I really appreciate your effort to make this a joint hearing. [The prepared statement of Hon. David M. McIntosh follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 4 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 5 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 6 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 7 Mr. CALVERT. I would like to thank the gentleman from Indiana, Mr. McIntosh, for his interest and willingness to host this hearing between our two subcommittees. And I want to thank my good friend Mr. Costello from Illinois for attending also. I would also like to thank our witnesses today for their participation in this hearing. Mr. Chairman, with the number of witnesses before us today, I will keep my remarks brief, in hopes that we will have ample time for questions. A core premise of the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Clinton-Gore administration’s Climate Change Technology Initiative is the theory that atmospheric buildup of greenhouse gases, principally carbon dioxide, caused by burning fossil fuels will destabilize the Earth’s climate and trigger all manner of catastrophic events. The Kyoto Protocol sets specific targets and timetables for a basket of six greenhouse gases, including CO2, and, if ratified by the United States and entered into force, requires the United States to reduce its net emissions by 7 percent below the 1990 levels in the 2008–2012 timeframe. I might note that the Science Committee has held numerous hearings on this in the past 2 years on the Protocol, and knows its real story—energy use will be more expensive, economic growth will be jeopardized, and American families will pay dearly for a flawed treaty. The administration has tried hard to gloss over the U.N. treaty’s fatal flaws, but it cannot sugarcoat the harsh realities that it would inevitably bring to our economy and to our way of life. The administration has repeatedly stated that it has no intention of implementing the Protocol prior to its ratification, with the advice and consent of the Senate. However, the April 10, 1998 legal opinion by then EPA General Counsel Jonathan Cannon that the Clean Air Act authorizes EPA to regulate CO2 has triggered concern about a possible ‘‘backdoor’’ implementation of this Protocol, a concern which I share, and I am sure everyone here is concerned about. In fact, EPA’s sweeping interpretation of its powers under the Clean Air Act would allow it also to regulate other greenhouses gases, such as methane or even water vapor and clouds, which account for about 96 percent of the greenhouse effect. The EPA opinion also notes that before it can issue regulations governing a pollutant under the Clean Air Act, the EPA Administrator must make a determination that the pollutant is ‘‘reasonably anticipated to cause or contribute to adverse effects on public health, welfare, or the environment.’’ I am looking forward to today’s testimony from our panel of legal experts on the EPA opinion, as well as from our scientific panel who will address the questions of whether man-made emissions of CO2 also adversely affect public health, welfare, or the environment. With that, Mr. Chairman, I would yield back the balance of my time. [The prepared statement of Hon. Ken Calvert follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 8 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 9 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 10 Mr. MCINTOSH. Thank you, Mr. Calvert. Again, I do appreciate your joining us and co-chairing this hearing. And at certain points, because I have a markup over in Education, I will be calling on you to chair this for us. I appreciate that. Let me now turn to Mr. Costello. Would you like to make an opening statement? Mr. COSTELLO. Mr. Chairman, I have a brief opening statement. Like you, I will have to leave in just a minute, so I trust that your ranking member will be here shortly. Mr. Chairman, I thank you and my good friend from California, Chairman Calvert for calling the hearing today. I think by now we are all familiar enough with the Clean Air Act and its many provisions to at least suspect that it provides the EPA with the authority to regulate carbon dioxide. However, at this point, it is less important than the question of whether the information we have at this point in time indicates that carbon dioxide is actually causing harm to humans or to our environment. I do not believe that this test has been met. The Congress and the administration have both indicated, and I adamantly agree, that the Kyoto Protocol should not be implemented prior to its ratification by the Senate. I believe we are all clear on that point. Therefore, I believe that we should be engaged in more positive pursuits than debating authorities under the Clean Air Act. It is in our national interest to look for ways to utilize energy resources more efficiently and to develop alternative energy resources that we will need in the future. We also should continue to develop a better understanding of all variables that affect local climate on both short and long-term scales. Increased greenhouse gases may be changing our climate. However, regardless of whether they are changing our climate or not, we need to understand climate phenomenon and their relationship to regional weather patterns and the effect on the frequency and intensity of storms or droughts. This information is vital for disaster preparedness and understanding impacts on weather-dependant sectors, such as agriculture. I hope we can move beyond the climate change debate to working on policies that benefit our constituents. I thank all of the witnesses for being here today. I look forward to hearing their testimony. Mr. Chairman, with that, I yield back the balance of my time. Mr. MCINTOSH. Thank you, Mr. Costello, and thank you for joining us. Undoubtedly, Mr. Kucinich is also over in the Education Committee markup, since we both serve on that committee as well. Let me call our first panel of witnesses. I would ask each of you to summarize any prepared statement you have in approximately 5 minutes or so, and then we will be able to put your entire remarks into the record. One of the policies that Chairman Burton has asked all of the subcommittees of the Committee on Government Reform to do is to swear in our witnesses. So, if all of you would please rise. Do you solemnly swear that the testimony you will give today is the truth, the whole truth, and nothing but the truth? [Witnesses sworn.] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 11 Mr. MCINTOSH. Thank you. Let the record show that each of the members of the first panel answered in the affirmative. Mr. Guzy, welcome. Thank you for coming today. Please share with us your testimony. STATEMENTS OF GARY S. GUZY, GENERAL COUNSEL, U.S. ENVIRONMENTAL PROTECTION AGENCY; JAMES HUFFMAN, DEAN, LEWIS AND CLARK LAW SCHOOL; PETER GLASER, ESQ., SHOOK, HARDY, AND BACON; AND JEFFREY G. MILLER, PROFESSOR OF LAW, PACE UNIVERSITY SCHOOL OF LAW Mr. GUZY. Thank you, Chairman McIntosh, Chairman Calvert, and members of the subcommittee, for the invitation to appear here today. I am pleased to have the opportunity to explain the U.S. Environmental Protection Agency’s views as to the legal authority provided by the Clean Air Act to regulate emissions of carbon dioxide. Before I do, however, I would like again to stress, as has been noted, that the administration has no intention of implementing the Kyoto Protocol to the United Nations Framework Convention on Climate Change prior to its ratification with the advice and consent of the Senate. Some brief background information may be helpful to understand the context for the question of legal authority posed by the subcommittee in this hearing. In the course of generating electricity by burning fossil fuels, electric power plants emit into the air multiple substances that pose environmental concerns. Some of these are already subjected to some degree of regulation. EPA has worked with a broad array of interested parties to evaluate multiple pollutant control strategies for this industry, and has also conducted an analysis of the scope of Clean Air Act authority to accomplish these. These have arisen in a series of forums dating back to the Clean Air Power Initiative in the mid-1990’s, and in developing the administration’s electric utility industry restructuring proposals. On March 11, 1998, during hearings on EPA’s fiscal year 1999 appropriations, Representative DeLay asked Administrator Browner about reports that EPA claimed it had authority to regulate emissions of pollutants of concern from electric utilities, including carbon dioxide. The Administrator replied that the Clean Air Act provides such authority, and agreed to supply to Representative DeLay a legal opinion on that point. Therefore, my predecessor, Jon Cannon, prepared a legal opinion for the Administrator on the question of EPA’s legal authority to regulate several pollutants. The legal opinion, which I endorse, requested by Representative DeLay, was completed in April 1998, and it addressed EPA’s Clean Air Act authority to regulate emissions of four pollutants of concern from electric power generation—nitrogen oxides, sulfur dioxide, mercury, and carbon dioxide. I will summarize the conclusions only as they relate to carbon dioxide. But let me emphasize that this analysis is largely theoretical. EPA currently has no plans to regulate carbon dioxide as an air pollutant, and, despite statement by others to the contrary, we have not proposed to regulate CO2. The Clean Air Act includes a definition of the term ‘‘air pollutant’’ which is the touchstone of EPA’s regulatory authority over emissions. Section 302(g) defines air pollutant as ‘‘any air pollution VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 12 agent, or combination of agents, including any physical, chemical, biological, radioactive ‘‘substance or matter which is emitted into or otherwise enters the ambient air.’’ The opinion noted that CO2 thus would be an air pollutant within the Clean Air Act’s definition. Perhaps most telling to me, Congress explicitly recognized emissions of CO2 from stationary sources, such as fossil fuel power plants, as an ‘‘air pollutant‘‘ in section 103(g) of the act. That section authorizes EPA to conduct a basic research and technology program to include, among other things, ‘‘improvements in non-regulatory strategies and technologies for preventing or reducing multiple air pollutants, including sulfur dioxides, nitrogen oxides, and carbon dioxide,’’ among others. The opinion explains further that the status of CO2 as an air pollutant is not changed by the fact that it is found in the natural atmosphere. Congress specified regulation in the Clean Air Act of a number of naturally occurring substances as air pollutants because human activities have increased the quantities present in the air to levels that are harmful to public health, welfare, or the environment. For example, sulfur dioxide is emitted from geothermal sources; volatile organic compounds, which are precursors to harmful ground-level ozone, are emitted by vegetation; and some substances specified by Congress as hazardous air pollutants are actually necessary in trace quantities for human life but are toxic or harmful at levels higher than found ordinarily or through other routes of exposure. Phosphorus, manganese, and selenium, these are examples of such pollutants. While carbon dioxide as an air pollutant is within the scope of regulatory authority provided by the Clean Air Act, this by itself does not lead to regulation. Before EPA can actually issue regulations through a rulemaking process governing a pollutant, the Administrator first must make a formal finding that the pollutant in question meets specific criteria laid out in the act. Many of these provisions share a common feature, in that the exercise of EPA’s authority to regulate air pollutants is linked to a determination by the Administrator regarding the air pollutant’s actual or potential harmful effects on public health, welfare, or the environment. This is true for authority under section 109 of the act to establish National Ambient Air Quality Standards. By the way, section 302(h), a provision dating back to the 1970 version of the Clean Air Act, defines ‘‘welfare,’’ for purposes of secondary effects, as including ‘‘effects on soil, water, crops, vegetation . . . weather, visibility, and climate,’’ among others. So, that since 1970, the Clean Air Act has included effects on climate as a factor to be considered in the administration’s decision as to whether to list an air pollutant under section 108. Analogous threshold findings are required before the Administrator may establish new source performance standards under section 111, or list and regulate a pollutant as hazardous under section 112. Given the clarity of the statutory provisions defining air pollutants and providing authority to regulate them, there is no statutory ambiguity that could be clarified by reference to legislative history. Nevertheless, Congress’ decision in the 1990 amendments not to adopt additional provisions directing EPA to regulate greenhouse gases by no means suggests an intention to limit pre-existing VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 13 authority to address any air pollutant that the Administrator determines meets the statutory criteria for regulation under a specific provision of the act. Let me reiterate one of the central conclusions of the EPA memorandum. ‘‘While CO2, as an air pollutant is within EPA’s scope of authority to regulate, the Administrator has not yet determined that CO2 meets the criteria for regulation under one or more provisions of the Act.’’ That statement remains true today. EPA has not made any of the act’s threshold findings that would lead to regulation of CO2 emissions from electric utilities, or any source. Is it well-crafted, as Chairman McIntosh asked, to this goal? I would just point out the second finding of the EPA memo, that existing authority does not easily lend itself to a cost-effective mechanism, to impose a cap and trade program, and the administration is pledged to consult with Congress on the best mechanisms for doing so. I also wish to stress once more that while EPA will pursue efforts to address the threat of global warming through the voluntary programs authorized and funded by Congress, and will carry out other mandates of the Clean Air Act, this administration has no intention of implementing the Kyoto Protocol prior to its ratification on the advice and consent of the Senate. This concludes my prepared remarks. I ask that my full statement be submitted for the record, and would be pleased to answer any questions that the subcommittees may have. Thank you. [The prepared statement of Mr. Guzy follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 14 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 15 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 16 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 17 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 18 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 19 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 20 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 21 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 22 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 23 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 24 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 25 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 26 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 27 Mr. MCINTOSH. Thank you, Mr. Guzy. And there being no objection, your full statement will be included in the record, as will the full statements of all our witnesses. Our second witness will be Mr. Glaser. Mr. GLASER. Thank you, Mr. Chairman. My name is Peter Glaser. I am an attorney in the Washington, DC office of the law firm of Shook, Hardy, and Bacon. I have represented clients on the subject of potential global climate change over the last 10 years. My testimony today examines the question: Does the U.S. Environmental Protection Agency currently have authority to regulate carbon dioxide emissions under the Clean Air Act or other statute? My analysis is set forth in the written version of my testimony, and, in more detail, my analysis is reflected in opinion of the National Mining Association dated October 12, 1998, and available on NMA’s website. Based on my analysis, I would conclude that Congress did not delegate authority to EPA to regulate carbon dioxide emissions. EPA, of course, takes the opposite view. It seems to be EPA’s thesis that because CO2 is emitted into the air, it must be an air pollutant, and that if the Administrator finds that carbon dioxide endangers the public health or welfare or the environment, then various provisions of the act, none of which mention carbon dioxide, could be invoked to regulate the substance. But the factual or technical issue of whether carbon dioxide endangers health, welfare, or the environment is only the beginning of the analysis of the legal question of whether EPA has the regulatory authority that the Agency claims. I defer to members of the Science Panel to present the case that carbon dioxide emissions are not a threat to America or the globe. If such threat does not exist, then even EPA would agree it has no authority to regulate greenhouse gas emissions. My analysis shows that even assuming for the sake of argument that carbon dioxide emissions do present a danger to health, welfare, or the environment, EPA nevertheless could not regulate those emissions. Why not? Because Congress, very simply, did not give EPA the power to do so in the Clean Air Act or other statute. Given the far-reaching consequences carbon dioxide regulation poses to our society, and given the uncertain science of global warming, Congress reserved the power to itself to determine in the future whether or not to authorize restrictions on CO2 emissions. In brief, my analysis includes the following elements. We first examined the language of the Clean Air Act and found no explicit authorization to regulate carbon dioxide emissions. Such emissions are addressed only in non-regulatory portions of the act. Given that regulation of carbon dioxide would have major consequences for all sectors of the economy, the fact that Congress never expressly gave EPA the authority to regulate such emissions is highly convincing of Congress’ intent not to do so. I next examined various sections of the Clean Air Act to determine whether Congress may have implicitly given EPA authority to regulate carbon dioxide emissions. No such authority exists. There is simply no rational way that I can figure out to regulate a global phenomenon such as global climate change under the National Ambient Air Quality Standards. EPA admits that the NAAQS do not, I think the testimony was, ‘‘do not easily lend VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 28 themselves to regulation.’’ I would say that the NAAQS do not in any way lend itself to regulation, and that reflects Congress’ intent not to regulate carbon dioxide under the NAAQS. Similarly, the regulation of carbon dioxide does not fit within the sections of the act dealing with new source performance standards, hazardous air pollutants, or transboundary air pollution. We then examined the legislative history of the Clean Air Act. As we know, Congress rejected a provision to regulate carbon dioxide emissions when enacting the Clean Air Act Amendments of 1990. As the Supreme Court has emphasized, ‘‘few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded.’’ Finally, we examined other congressional activity dealing with potential global climate change to attempt to discern an intent to regulate or not to regulate carbon dioxide emissions. Congress has dealt with climate change issues at least since the late 1970’s and has enacted a number of items of legislation dealing with this subject. Yet, all of the legislation enacted has been non-regulatory, including Senate ratification of the purely voluntary Framework Convention on Global Climate Change, and, of course, the Framework Convention on Climate Change Amendment, the Kyoto Protocol proposed amendment has not been submitted to the Senate for ratification. It is just not possible to square this long history of congressional rejection of greenhouse gas restrictions with EPA’s claim today of discretion to issue far-reaching regulations. In conclusion, there is no more axiomatic provision of administrative law than that the authority of government agencies is limited to the authority granted them by Congress. This principle was confirmed recently by the U.S. Court of Appeals for the D.C. Circuit in the American Trucking Associations case, striking down EPA’s recently promulgated NAAQS for ozone and particulate matter. EPA’s claim that it may regulate carbon dioxide is an extraordinary attempt by the Agency to arrogate to itself power to control virtually all facets of the American economy. It is simply not believable that Congress would have granted EPA this power without ever explicitly having said so. That concludes my oral remarks, Mr. Chairman. I do have written remarks for the record. [The prepared statement of Mr. Glaser follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 29 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 30 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 31 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 32 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 33 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 34 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 35 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 36 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 37 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 38 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 39 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 40 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 41 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 42 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 43 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 44 Mr. MCINTOSH. Thank you very much, Mr. Glaser. Your remarks will be included in the record. Our third witness will be Mr. Miller. Mr. MILLER. Thank you, Mr. Chairman. I am pleased to be here, and thank the two Chairs and the Members for inviting me. I have very little to add to what Mr. Guzy has said with regard to whether CO2 is a pollutant or could be a pollutant under the Clean Air Act. The definition is very broad, almost anything can fit within it. The definition contains no limitations; it does not exclude CO2, and nothing anywhere else in the act excludes it. I should mention that those broad types of jurisdictional provisions were not unusual in the legislation of the early 1970’s. In the Clean Water Act, for instance, there is a very broad definition of pollutant as well. The courts have held ‘‘pollution’’ there to include sand, dead fish, natural material from streambeds and banks, and even chlorine that is added to drinking water reservoirs for purification purposes. Under the Clean Water Act, it is a little worse than under the Clean Air Act from the polluter’s perspective, because the discharges of a pollutant without a permit are illegal without any regulatory activity on EPA’s part. Under the Clean Air Act, pollutants may be emitted into the air unless EPA takes regulatory action to regulate them, which it has not done for CO2. So the two-part determination that EPA must make to regulate under the Clean Air Act—the first being that we’re dealing with an air pollutant, and the second, that the pollutant has adverse effects on health or welfare—the first I think is almost pro forma, the second is far more difficult and EPA has not attempted that here. I would like to just mention a few of the points which have been made which may be a little misleading. It has been contended, for instance, that sections 108 and 109 would not authorize CO2 to be regulated under the National Ambient Air Quality Standard provisions because it is not mentioned. If that is the case, EPA has no authority to regulate anything under those provisions because they do not mention any pollutants. Second, it has been said that the fact that most of the pollutants that EPA regulates as National Ambient Air Quality Standards are particularly mentioned or listed in sections 171 to 193, which is a congressional direction for EPA to regulate those pollutants. This is a little miscast as well. Those sections did not come about until EPA had already listed those pollutants as criteria pollutants and had regulated them for years. Sections 171 to 193 nowhere hint that CO2 is not a pollutant or should not be regulated by EPA. It has been argued that the SIP process is not appropriate for controlling CO2 because CO2 is a global rather than a local pollutant. That is an interesting point. I think we need to step back and recognize that the pollutants that are regulated from this system are on a spectrum, from very local pollutants like carbon monoxide, to very long-range pollutants like ozone or sulfur oxides, which are international. The SIP process has been best at controlling local pollution and has not been nearly as good at controlling transboundary pollution, which is why Congress has had to grant additional authority, for instance, for controlling acid rain. But that VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 45 does not mean that the SIP process is useless in addressing longrange pollutants. Indeed, it has been. Of course, EPA, if it undertakes listing of CO2, or any other pollutant, as a criteria pollutant, must accompany that with information about what the States can do about it, what industry can do about, how emissions can be curtailed. Unless it can do that, it would not be appropriate for EPA to go down that route. The fact that there is not a lot of technology available right now to control emissions of CO2 is perhaps not entirely true or entirely relevant. There are technologies which increase the efficiency of electric generation, for instance. That has the direct effect of controlling CO2 emissions. If you produce more kilowatt hours out of burning the same number of BTUs, you have produced the same number of BTUs with lesser emissions of CO2. It should not be forgotten that the Clean Air Act, as it was originally conceived, was a technologyforcing statute. When it was enacted in 1970, the automobile companies, under oath before Congress, said that there was no technology to address curtailment of emissions from automobiles. Well, guess what? It did not take very long to come up with that technology when their feet were held to the fire. So it may well be possible that appropriate technologies could be developed here. Finally, the argument that the Congress rejected a 1970 Senate bill requiring EPA to take a variety of measures to curtail greenhouse gases does seem to be a bit of a non sequitur. Since it did require EPA to take action on a broad array of pollutants, not just CO2, its defeat does not necessarily tell us what Congress would have done with a narrow CO2 bill. Defeating a requirement for EPA to take action is not the same thing as saying EPA cannot take action. I think, with regard to that, we should remember the admonitions of Justice Scalia, who is one of our leading thinkers these days on statutory interpretation. He tells us that we must start with the text and that is where we should end up. The legislative history is not a good guide to what the text of a statute tells us. Rejected legislation tells us very little about the meaning of enacted legislation, and the failure of the legislature to enact legislation in a different era tells us very little about what was intended by the Congress that enacted the legislation. We are talking, in the terms of 108, 109, 110, 111, these other basic provisions, about things that were enacted back in 1970. Congress might not enact them the same way today, but we are dealing with what was enacted in 1970. Thank you very much. [The prepared statement of Mr. Miller follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 46 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 47 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 48 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 49 Mr. MCINTOSH. Thank you for your testimony, Mr. Miller. Our final witness on this panel is Mr. Huffman. Mr. HUFFMAN. Thank you, Mr. Chairman. My name is James Huffman. I am professor of law and Dean at Lewis and Clark Law School in Portland, OR. I have taught constitutional law and natural resources law for 25 years. My conclusion on the subject of these hearings is that EPA regulation of carbon dioxide pursuant to the Clean Air Act is unauthorized and would constitute a clear violation of the fundamental constitutional principle of separation of powers. Assuming, for the sake of argument, that regulation of carbon dioxide emissions is a good idea from a policy perspective, it does not follow that EPA has the authority to enact such regulations. While the framers of our Constitution undertook to create a government that could provide for the public welfare, they were even more concerned to create a government that was constitutionally limited and constrained. Pursuant to the principle of separation of powers, only Congress has the authority within clearly defined constitutional limits to determine which good ideas will become government policy in law. Absent expressed statutory authorization, there are important and, indeed, fundamental constitutional reasons to insist that EPA does not have authority to regulate carbon dioxide. We are not concerned here with an isolated toxic substance which Congress might have overlooked in the construction of its regulatory scheme. To the contrary, we are concerned with one of the most plentiful compounds in the Earth’s atmosphere, the regulation of which will have dramatic and long-reaching effects for all Americans. Under these circumstances, the core values of our constitutional democracy require that Congress make the monumental decision, which the EPA would, if it regulated CO2, appropriate to itself. In the current administration, some departments of the government have been particularly aggressive in reaching beyond their enabling legislation to pursue an agenda which Congress has not embraced. The Department of Interior has claimed authority to implement ecosystem management in legislation enacted before the idea of ecosystem management was even conceived. The Department of Agriculture has just this week issued proposed regulations which, in the words of their press release, would ‘‘create a new vision for national forest planning.’’ EPA’s regulation of carbon dioxide would be a similar over-reaching. Notwithstanding Mr. Guzy’s protestations to the contrary, there seems little doubt that the administration’s objective is to move the United States toward compliance with the objectives, if not the explicit standards, of the Kyoto Protocol, and I would note the statements from the two leading figures in the administration to my left. Treaties do not become the law of the land without the consent of two-thirds of the members of the U.S. Senate. The super majority is required because the framers believed that committing the United States to agreements with foreign nations is of particular moment. It is, therefore, doubly offensive to the principle of separation of powers for the Executive who has negotiated a treaty to propose regulations designed to implement that treaty without the VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 50 Senate’s consent and without any implementing legislation approved by the Congress. Every Member of Congress, including those Members of the Senate favoring ratification of the Kyoto Protocol, should be resolute in their opposition to unauthorized EPA regulations designed to implement standards of that unratified international agreement. It is horn book constitutional law that our government is one of limited and divided powers. The recent D.C. Circuit Court of Appeals decision in American Trucking, which Mr. Glaser has mentioned, is of central relevance to the question before these committees. At issue in American Trucking was whether or not EPA had acted within its authority in setting new standards for particulate and ozone ambient air quality. The court acknowledged in that opinion that, unlike carbon dioxide, EPA has expressed statutory authority to regulate ozone and particulates, but concluded that ‘‘EPA has failed to state intelligibly how much is too much.’’ ‘‘It was,’’ said the court, ‘‘as if Congress commanded EPA to select big guys, and EPA announced that it would evaluate candidates on height and weight but revealed no cutoff point.’’ EPA’s regulation of carbon dioxide would be even less well-rooted in the language and legislative history of the Clean Air Act. To paraphrase the American Trucking opinion, it is as if Congress commanded EPA to protect health, and EPA announced that it would regulate anything which might affect health but revealed no standards for assessing whether the net effects were positive or negative. The court’s decision in American Trucking is surely correct. The Congress should not depend upon the courts to protect its constitutionally defined power from usurpation by administrative agencies. The American Trucking opinion is something of an aberration in nearly three-quarters of a century of judicial deference to expanding power in the Federal bureaucracy. Indeed, critics of the circuit court’s decision have been quick to suggest that the non-delegation doctrine was generally thought to have gasped its last breath in Schecter Poultry in 1935. Perhaps American Trucking marks the beginning of the revival of the non-delegation doctrine. But even in that event, Congress has a responsibility to jealously guard its authority, not for the sake of power, but for the sake of the liberties of Americans which depend upon adherence to the principle of separation of powers. Separation of powers is not just a simple matter of government organization or of convenience. It is a fundamental principle of American constitutional law, as important to the protection of private and public liberty as the Bill of Rights. It is surely fair to assume that EPA is motivated to serve the public good in everything it does, including its proposed regulation of carbon dioxide. But good intentions do not satisfy the standards of the Constitution. If carbon dioxide emissions are of sufficient concern to warrant Federal regulation, it is not asking too much that Congress provide the authorization required by the Constitution. Thank you. [The prepared statement of Mr. Huffman follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 51 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 52 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 53 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 54 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 55 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 56 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 57 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 58 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 59 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 60 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 61 Mr. MCINTOSH. Thank you, Mr. Huffman. I appreciate your remarks. As I said, the complete written text of all of your testimony will be put into the record. I have a couple of questions and then we will recognize my fellow panelists. First, Mr. Guzy, you had mentioned the general provision on pollutants in section 302(g), and then to bolster a very broad interpretation of what that is in the Cannon legal memorandum you cite section 103(g) as proof that CO2 is a pollutant within the meaning of the Clean Air Act because it is listed there. But in that same section Congress put into law ‘‘Nothing in this subsection shall be construed to authorize the imposition on any person of pollution control requirements.’’ Similarly, the provision in the Clean Air Act mentioning global warming, section 602(e) stipulates ‘‘The preceding sentence shall not be construed to be the basis of any additional regulation under this chapter.’’ How do you interpret these congressional restrictions in using those subsections to bolster your argument about the general text? Mr. GUZY. Mr. Chairman, it is important to keep in mind why the memorandum cites 103(g)(1). It does not cite it, and I want to be very clear about this, as in and of itself statutory authority for regulation of CO2. Mr. MCINTOSH. I understand that it cites it to bolster the argument about section 302. Mr. GUZY. But what it does absolutely clearly is indicate that Congress regarded carbon dioxide as ‘‘an air pollutant.’’ And the limiting provisions that you have cited here, which basically say that nothing in this subsection shall be construed to authorize the imposition on any person of pollution control requirements, go to the question of do we have authority to draw from a technology and research program particular control requirements that could be imposed on sources. That’s not the issue that we’re citing 103(g) for. What we’re citing it for is the clear congressional understanding that carbon dioxide from sources such as electric generating utilities, stationary sources such as that, can properly be regarded as an air pollutant and should be regarded as an air pollutant under the definitions of the act. That then gives rise to the next set of questions under the particular regulatory provision, the particular statutory provisions that we then would face were the administration to decide to move forward with that kind of an action. The question that you asked about section 602 also is not referenced in the memorandum as a source of authority for the general understanding of Congress that, in fact, carbon dioxide should, or could, be regarded as an air pollutant. And if I may, Mr. Chairman, make a few more general points. While Congress specified certain substances that are widespread in recognizing that there could be regulation as under the provisions for National Ambient Air Quality Standards, Congress also recognized that knowledge would change, knowledge would evolve. And so it also gave authority to the Administrator to designate new types of pollutants, as Ambient Air Quality Standards, as criteria air pollutants, the most fundamental that could be subject to a regulatory scheme. It also provided, I might add, a very elaborate regulatory process that the agency would need to go through were it VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 62 to commence that type of work. And those standards constitute quite clear limiting principles for any future agency action. Mr. MCINTOSH. It strikes me as somewhat self-serving to select those parts where Congress explicitly says we don’t intend to create regulatory authority, and then discount an explicit provision where regulatory authority was in fact rejected by Congress. Is there any substance that you know of that does not fit the definition of air pollutant that you are putting before us in section 302? Mr. GUZY. Again, I would refer the chairman also to the sort of next set of requirements that—— Mr. MCINTOSH. No, no, no, no. Getting to that initial step, which is where you say we are at with carbon dioxide, is there any substance that would not meet that test? Mr. GUZY. I will concede that it is a very broad definition and there is an argument for just about any substance that it could be regarded as an air pollutant under that definition. Mr. MCINTOSH. That’s what I thought. In which case, you are reading the act to be a general mandate for EPA to provide for health and welfare, because any substance qualifies under the first step, and you are saying Congress created, in the name of a Clean Air Act, a general regulatory authority for all substances if it affects health and welfare. Mr. GUZY. I would like to be a little bit more precise about it, Mr. Chairman. First of all, I was assuming that by your question you were referring to any substance which gets into the air, and I take that as a given. But that would be necessary to qualify under the definitional section in 302. But then the question that is faced, which is a fundamental question that EPA has not yet faced, is what regulatory scheme is it then potentially subject to. And there are very clear limitations in the act that would rule out all sorts of substances. I particularly refer you to section 108, where the substance has to cause or contribute to air pollution which may reasonably be anticipated to endanger, not just affect, endanger public health or welfare, and the presence has to result from numerous or diverse mobile or stationary sources. In other words, it is susceptible to the kind of regulatory scheme that Congress set forward in the 1970 act, and then again ratified in the later amendments. Mr. MCINTOSH. Let me ask Mr. Glaser, do you want to comment on this discussion? Mr. GLASER. Yes, absolutely. I think the focus on whether a substance is an air pollutant within this incredibly broad definition of anything emitted into the ambient air is somewhat of a red herring, for a number of reasons. First of all, it ignores some very, very basic principles of statutory construction, including that we do not make a fortress out of the dictionary, we don’t engage in overliteralism, but in construing statutory language we try to view the language in light of the overall context and regulatory program in which the language is used. So it is not enough simply to say, well, it is emitted to the ambient air, therefore it must be an air pollutant, and therefore we can go ahead and regulate it if it causes danger. VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 63 The question is, is it the type of air pollutant, is it the type of emission that Congress designed this statute to deal with? And we know what kinds of air pollutants this statute was designed to deal with. They are pollutants that are emitted to the air and are deposited and are breathed in by people and have a direct effect either on people or the environment. It is not fair, it is not correct to say that this statute was designed to deal with the type of emission, like carbon dioxide, which is emitted into the atmosphere and circulates globally in the troposphere and creates an indirect environmental impact in that sense. For that type of environmental impact, this act has no provisions that can deal with that. And that is the whole problem here. We heard an earlier witness say the act does not just deal with local pollution, it deals with regional transport or long-range transport. It is absolutely true, the Clean Air Act has provisions that deal with wind-borne air pollution that blow pollutants downwind 50, 100, 200 miles. But that is not anything like carbon dioxide. Carbon dioxide is not an emission that goes in the air and it is blown downwind, in the sense that it is emitted in one area of the country and it is blown downwind and has an effect in another area of the country. One ton of carbon dioxide emitted in Kansas has the same overall impact on international global warming as a ton emitted in Bangladesh. So there is therefore no way that this structure created in this act can deal with it. The NAAQS, for instance, every State has to submit an implementation plan and that implementation plan has to provide how the State is going to get into attainment for the particular NAAQS. The State is required, mandated to come up with an attainment plan that will meet the NAAQS. Now, it is true that there are regional transport issues so that upwind States have to include in their implementation plans provisions to eliminate any contribution the upwind State may be making to downwind non-attainment. But that system has no rational application whatsoever to carbon dioxide. An earlier witness said it would be useful in some way. It is not even a question of being useful. It just does not fit. It is a round peg in a square hole and you cannot presume that Congress would have intended to provide a system of regulation that just cannot possibly work. So, in conclusion, I would simply say that to engage in this debate on what is or what may not be an air pollutant strictly within the terms of the Clean Air Act is pretty fruitless. The real question is what does the substance of the act say about dealing with a substance like carbon dioxide. And it is just not in there. Mr. GUZY. Mr. Chairman, may I just respond very quickly? Mr. MCINTOSH. Yes. And while you are doing that, I have got another quick question for you, which is, did you reevaluate the Cannon opinion in light of the American Trucking Association decision? Mr. GUZY. Yes. Let me just respond very quickly, if I may, to Mr. Glaser. I would just refer the subcommittees to a provision which has been in the act since 1970, was ratified again in 1977, remained in the act after the 1990 amendments, and that is section 302(h), which recognizes that welfare, the subject of secondary ambient air quality standards, can include effects on ‘‘soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 64 visibility, and climate, damage to and deterioration of property and hazard to transportation, as well as effects on economic values and personal comfort and well-being, whether caused by transformation, conversion, or in combination with other air pollutants,’’ not necessarily purely inhalation routes of exposure, as Mr. Glaser suggests. We did look at the ATA decision. One thing that I will say, that Dean Huffman and I are very much in agreement on, is that the ATA decision is an aberration, as he said. As you well know, Mr. Chairman, we have sought rehearing before the D.C. Circuit of that decision and requested a rehearing en banc before the full court. But despite our fundamental disagreement with it, that is the prevailing precedent in the Circuit at this time and we obviously want to conform our activities to it. We have looked at that decision. Were it to stand, our sense is that there is enough clear guidance, limiting principles in this statutory construct that would suggest that in fact there is not an unconstitutional delegation of authority were EPA to go forward with some kind of regulatory approach to limiting carbon dioxide. But, again, I want to get back to my basic point, which is that EPA has not made that kind of decision and currently has no plans to do so. Mr. MCINTOSH. Right. I would have to say for the record I would disagree with your reading of that case. To me it would read more like an unconstitutional usurpation of authority by EPA that the courts were trying to prevent when they struck down those rules. Let me turn now to Mr. Calvert for questions he might have. Mr. KUCINICH. Are we going back and forth, Mr. Chairman? Mr. MCINTOSH. We were going to have the two chairmen speak first, then go back and forth. Does that work for you, Dennis? I will try to get you in before we go back to the votes. Mr. KUCINICH. I just wanted to see what the ground rules are. I am ready to play, I just wanted to know what the rules are. Mr. MCINTOSH. Great. We were going to do each committee back and forth. Mr. KUCINICH. OK. And we have 10 minutes? No problem. Mr. CALVERT. I thank the chairman. There is a lot of discussion about the intent of Congress at the time of the implementation of the Clean Air Act. I would ask the chairman, there are not too many Members still here, but Congressman Dingell is here and I would ask that he would submit his testimony or letter to the record. I am sure the gentleman from Michigan would submit testimony on the intention of Congress at that time. I think it would be interesting to have in the record, especially from the minority position. So if that is not objectionable, Mr. Chairman. Mr. MCINTOSH. There being no objection, we will hold the record open for shall we say 10 days. Mr. CALVERT. I would ask that that be done. Ten days is fine with me. [The information referred to follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 65 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 66 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 67 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 68 Mr. CALVERT [presiding]. I would like to ask Mr. Guzy a question. On June 11, 1998, EPA published a proposed rulemaking regarding the protection of stratospheric ozone, refrigerant recycling, substitute refrigerants in the Federal Register. It is my understanding that this proposed rule may ban certain non-ozone-depleting refrigerants if they have high global warming potentials. The text of the proposed rulemaking states: ‘‘EPA recognizes that the release of refrigerants with high global warming potentials could cause a threat to the environment.’’ This implies to me that under the rulemaking EPA has made a determination that global warming is a threat to the environment. Since CO2 is considered a major contributor to global warming, then is it not just a small step for EPA to declare CO2 a threat to the environment and to proceed with regulations? What is your comment on that, Mr. Guzy? Mr. GUZY. The EPA, under a series of long-standing commitments that actually preceded this administration, has expressed concern about the potential for greenhouse gases to cause a global climate change. In fact, the preceding administration negotiated and signed on the Nation’s behalf the Rio Declaration. That gives rise to a series of domestic obligations—— Mr. CALVERT. So the administration is determined to start regulating various gases based upon potential agreements; is that your testimony, Mr. Guzy? Mr. GUZY. No. In fact, that agreement, the Rio Agreement was ratified by the Senate and is binding upon the United States. Now it does not call for the same kinds of targets and timetables that the Kyoto Protocol does. Nonetheless, the Clean Air Act has a number of authorities that compel EPA to look at environmental effects and we would regard climate change effects as among those. Mr. CALVERT. For all the witnesses, on any major controversial issue—and I think everyone on this panel would agree that this is controversial—of long-standing debate, with enormous economic implications like global warming, is it even conceivable that Congress would authorize EPA to launch a vast new regulatory program without expressly saying so? As far as I know, this Congress has not said so. Is Congress in the habit of delegating far-reaching powers to agencies just by mere silence? Anyone have any comment about that? Mr. Huffman. Mr. HUFFMAN. Yes. It is to me a peculiar notion of American Government that problems that arise that are new problems are to be solved by searching around in existing legislation for authority. It seems to me that our constitutional system is fairly clearly separated into three parts, not with clear dividing walls between them, but the policymaking function is clearly the legislature’s. It seems to me in recent years, particularly in the current administration, there has been a tendency to have an agenda which by-passes Congress and is sought to be implemented through existing legislation. Mr. CALVERT. Are you saying, Mr. Huffman, that I did run for election for a purpose? Mr. HUFFMAN. I would hope so. And I would say that the most condemning thing that I have heard said today was my friend, Professor Miller’s comment, that this legislation fits almost anything. VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 69 Any piece of legislation about which that can be said, where that argument can be used to justify regulation, is a piece of legislation which delegates more authority than Congress can delegate. I think even the U.S. Supreme Court, which has been reticent to overturn legislation on the non-delegation theory, would find that argument problematic in support of regulating CO2. Mr. MILLER. Of course, I think I completed my sentence by saying that the first test, whether it is an air pollutant, fits almost anything that is emitted into the air, but that the second test, which is necessary before EPA does anything, is that it finds that it is an endangerment to health and welfare and that something can be done about it. But the tradition of searching around in existing statutes to meet a present problem is one of long-standing tradition. I remember in the Nixon administration when the Environmental Protection Agency, or its predecessor actually, and the Justice Department resurrected an 1898 statute having to do with dredging harbors and rivers to begin a water pollution permitting program. That was eventually struck down, not because it was not authorized, but it was struck down because it did not comply with NEPA. Mr. GUZY. Mr. Chairman, if I may, we believe that Congress made a fundamental policy choice when it passed the Clean Air Act to protect the public health from endangerment from air pollutants. But it did so in a very far-sighted kind of way. It did not just say here is the problem, these are solutions. It said keep looking at it because the science will evolve, the problems will evolve, you cannot be static in time. In fact, it included provisions that require us to look back every 5 years and assess using the best available science through an independent peer review process whether, in fact, we have got it right. Mr. CALVERT. Mr. Guzy, I am very interested in clean air. I represent Riverside, CA, and anyone who represents an area in southern California is extremely interested in clean air. What I am concerned about is whether any statutory authority has been given to regulate CO2. I have heard nothing from this Congress that gives EPA statutory right to regulate CO2. I go back to the start of my questioning, I am interested in Mr. Dingell’s testimony he will submit to this committee for the record as to what the intentions of the Congress was back thirty years ago under the Clean Air Act. Mr. Glaser, do you have any comment? Mr. GLASER. Yes. The problem for the notion that there is some mop up authority in the Clean Air Act to deal with new problems as they come along, that is one thing. But we are now almost 30 years into Clean Air Act regulation. Congress has taken a look at this act a number of times and has gone back and included many, many, many more detailed provisions in the act than there used to be. The notion about whether a substance should be mentioned in the act in order to be regulated gets us into the claim of authority that EPA could potentially regulate carbon dioxide as a hazardous air pollutant under section 112. Well, I think in 1990 Congress added 190—190—substances explicitly referenced as hazardous air pollutants and carbon dioxide is not on the list. Now, does that mean that there might be a 191st substance out there that EPA VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 70 is authorized to regulate because this substance, for instance, was not manufactured in 1990 and somebody has just discovered something about it. That may be true. But the notion that Congress in 1990 just sort of missed carbon dioxide is not credible. Mr. CALVERT. My time has expired, Mr. Glaser. But just as a final point, and well-taken, it seems to me that people were talking about at what point does CO2 become dangerous or gets over the natural level. I guess the only comment I would have is if you cannot regulate it, it is good CO2, and if you can regulate it, it is bad CO2. It is just determined on which type of CO2 we regulate. With that, Mr. Chairman, my time has expired. Mr. MCINTOSH. Thank you, Mr. Calvert. Let me recognize now our colleague, Mr. Kucinich. Why don’t you also feel free to take Mr. Costello’s time. Mr. KUCINICH. I do not think I will need that much time. I want to thank the Chair very much for calling this hearing, and also recognize Mr. Calvert, who I had the pleasure of actually traveling with to the Conference of Parties in Buenos Aires, Argentina to discuss some of these same issues. So, I am glad to have the opportunity to share a panel with you again. I look forward to some of these important issues that are discussed. From the outset, what I would like to say, and I think many members of this committee are fully aware, including, and perhaps especially Mr. Barr, is that I am a firm believer in Congress exerting its authority. As some of you will recall, I am a co-plaintiff with Mr. Campbell of California in challenging the administration’s usurping of congressional authority on Article 1, Section 8 of the Constitution, the ability to declare war. So I am not ready to cede congressional authority on anything. I just wanted to share that with you. And that is why I think that Mr. McIntosh’s point is well-taken in asking these questions. But I have some questions that I would like to ask that kind of approach this from a slightly different perspective, as you may expect. First of all, welcome to all of the panelists. Professor Huffman, I have actually had the opportunity to visit your campus a few times there in Portland, and it is beautiful. It is a short walk from Tom McCall Park, who was a great environmentalist who I admire greatly, who actually influenced my career in some ways. What he did to help reclaim that Oregon coastline I thought was one of the most important contributions that any public official has made in this country. So I have a real affection for Portland and for the area, and it is nice to see you here. I would like to start with asking Mr. Guzy, I have read Dr. Huffman’s written testimony in which he refers to EPA’s proposed regulation of carbon dioxide. I came a little bit late so I may have missed something. Has the EPA proposed regulations of carbon dioxide? Mr. GUZY. No. Not in any way. Mr. KUCINICH. OK. So, if there is any statement relating to EPA regulation of carbon dioxide, I am reading from Dr. Huffman’s testimony, I think it is page 4, ‘‘EPA’s proposed regulation of carbon dioxide,’’ you are saying that EPA has not proposed such regulation? VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 71 Mr. GUZY. As he uses it there, we have not. We have used our authority to—— Mr. KUCINICH. I understand that. Mr. GUZY. Referenced under some other provisions, where that is appropriate, to address general environmental effects, particularly under title VI. But to address carbon dioxide as carbon dioxide, EPA has not proposed any regulation. Mr. KUCINICH. Also, I am again looking at Dr. Huffman’s testimony where he cites the American Trucking case. Are you familiar with that case? Mr. GUZY. Yes, I am. Mr. KUCINICH. This may just be a question of linguistic construction, but maybe you can help me, Mr. Guzy. I am reading this on the section about government of limited and divided powers. At issue in American Trucking was whether or not the EPA had acted within its authority in setting new standards for particulate and ozone ambient air quality. The court acknowledge that, and then in parentheses, ‘‘unlike carbon dioxide,’’ EPA has expressed statutory authority to regulate ozone and particulates, and it goes on. I am not that familiar with American Trucking. Did they mention carbon dioxide in any way? Mr. GUZY. I currently do not remember the court mentioning carbon dioxide. Mr. HUFFMAN. That is my parenthetical, not the court’s. Mr. KUCINICH. Oh. So maybe brackets would have been better, professor. Mr. HUFFMAN. Thank you for the correction. Mr. KUCINICH. My background is in communications. I am not a law professor. I am just a humble Member of the Congress. Mr. HUFFMAN. I apologize for that. The editors of my law review would have corrected me as well. So, thank you. Mr. KUCINICH. I do not work out of those lofty environs. I am just trying to figure out what the case said. Thanks. I would like to know, Mr. Guzy, would you comment on the paper entitled, ‘‘CO2: A Pollutant’’ which was prepared for the National Mining Association by Mr. Glaser and others. Mr. GUZY. Well, it does in my estimation draw a number of sweeping conclusions from some fairly thin facts. At times, it, in my view, does not fairly present the statutory text that is presented. For example, in its treatment of 103(g), which is in our memorandum an absolutely critical provision to make clear that Congress was well aware that carbon dioxide could be regarded as an air pollutant, instead of recognizing that Congress regarded it as an air pollutant, it says it is an ‘‘item.’’ It says carbon dioxide is an item to be addressed in a technology program, a technology and research development program. That seems to be a fundamental fatal oversight in the analysis of the statutory text that is in there. Similarly, a number of the arguments on legislative history seem to be fairly sweeping in their conclusions. For example, Congress well knew how to require of EPA that there be a study before it engaged in regulation; mercury, the utility study, the Great Waters Study, all of which require that we study, and submit reports to Congress before engaging in any regulatory steps. That is abso- VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 72 lutely absent with respect to carbon dioxide. One would expect giving the proper deference to Congress’ intent that—— Mr. KUCINICH. Is it possible that as science evolves and technology evolves, when you look at what might have been the intent at the time, that to put it into the context of advanced science may be somewhat difficult, may present a challenge? Mr. GUZY. If I understand your question, one of the things that is most striking about the Clean Air Act is how foresighted Congress was in 1970 when it enacted it, that it recognized that the problems may change, that technology may change, that science may change. Not only did it list 188 HAPs, it also provided authority to the Administrator to remove some of those if appropriate, or to add others, if needed. Not only did it say you adopt national ambient air quality standards for fundamental air quality issues, but it gave the Administrator authority to add others if needed, if they endanger public health or welfare. So, that recognition that action should be premised on the best available science and that that science will change is really embodied in the concept of the Clean Air Act. That is among the fundamental choices that Congress made back then and has ratified every time since when it has passed and reaffirmed the Clean Air Act. Mr. KUCINICH. OK. I would just like to say again that, as a Member of the Congress of the United States, I am not here to represent administrative opinion, I have constituents who are very concerned about some of these issues relating to air quality and to global climate change and things like that. As a Member of Congress, just as my colleagues here want to insist that Congress plays a role in these things, I want Congress to play a role, too. Thank you very much. Thanks to the panelists. Mr. MCINTOSH. Thank you, Mr. Kucinich. Before turning the questioning over to Mr. Ehlers, let me just make sure I understand what you were just saying, Mr. Guzy. That a flaw in Mr. Glaser’s analysis is that he talks about the fact that there is no study, and the fact that there is no study really means that Congress thought it might regulate CO2 as a pollutant? I do not mean to be at all facetious, but I was not following your argument there. Mr. GUZY. My argument is that when Congress wanted to require additional scientific assessment before authorizing regulatory action under pre-existing statutory requirements it knew perfectly well how to require that. It did it for mercury, it did it for deposition of air pollutants in the Great Waters, and it did not do it for CO2. Now, we would not say that in itself provides an indication of statutory authority to move ahead. But combined with the other provisions that we have cited, we believe that it is inappropriate to suggest that there is some limitation on potential EPA action that can be derived from any of the succeeding activities that Congress engaged in on CO2. Mr. MCINTOSH. But would you not acknowledge that it is at least an equally plausible interpretation that Congress, by not requiring that study, did not think of regulating CO2 as a pollutant? VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 73 Mr. GUZY. I would find that hard to believe in view of the very clear language in section 103(g) where Congress, in fact, refers to carbon dioxide as an air pollutant. That seems very unambiguous. Mr. GLASER. Mr. Chairman, if I could just jump in. I actually would reach exactly the opposite conclusion than Mr. Guzy is reaching on the issue of study. As he said, the act did include provisions in 1990 amendments for study and then a decision by EPA whether to regulate. In contrast, there were provisions in the Clean Air Act I believe for study of methane but there was no corresponding provision of the act that said, well, if they determine that methane is a problem, then regulate. That is not in there. It is not in there anywhere. I would say that the argument about what the act says about studies supports the notion that Congress very, very, very carefully drew the line about what it wanted to do with CO2, and it did not include regulation. Mr. MCINTOSH. OK. I apologize to Mr. Ehlers for using some of his time. I just wanted to make sure I understood what the points were there. Let me recognize Mr. Ehlers for questioning. Mr. EHLERS. Thank you, Mr. Chairman. Both of us have to go vote in committee immediately. I had a list of questions but I will cut to the chase here and just make a comment. Mr. Guzy and Mr. Miller, you have both made good cases for the proposition that the EPA has the authority to regulate. These are good cases but they are not convincing. I think the crux of the matter, just speaking as a Member of Congress, is a point that Mr. Huffman made. I might also say that as a scientist, I am very concerned about the increasing amount of CO2 and what it is likely to do in climate change, not so much global warming but climate change of various sorts. But Mr. Huffman made some basic points and I think they get to the crux of the matter, as I see it as a Member of Congress. The point is, simply, I do not think the Congress in 1970 really envisioned CO2 as ever being a problem. I think the Congress in 1990 began to discern that it was a problem, although I recognize that legislation started much earlier than 1990. But if you would say what is the best action that could be taken today to control the increase of CO2, I would have to give an answer as a Member of Congress that the Congress should look at it, because I am not at all convinced that EPA’s activities, if they would operate within their charter, is the most efficient way of dealing with the doubling of CO2. For example, increasing CAFE standards, which I believe is in the province of the Department of Transportation, and we, of course, legislate that, might be a much more efficient way. To simply say that we have to double the CAFE standards would greatly reduce CO2 emissions. Or, perhaps we should double the gas tax. And as a Republican, I would have to add I would compensate by lowering the income tax or something else so it is revenue neutral. But, nevertheless, that would be an effective way of reducing CO2 emissions. In terms of power production, you could get rid of immense amounts of CO2 from plants by engaging in a mammoth expansion of our nuclear power program. That would also not be environ- VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 74 mentally popular but it would certainly take care of the CO2 emission problem. And there are a host of other alternatives, all of which would be administered by agencies other than the EPA. And so my argument from a very pragmatic point is, given the whole argument what Congress intended, what the law says, what the Constitution says, what the intent is of the Constitution and the Congress, I would have to simply go with the fact that I think Congress should revisit the issue and say, OK, we are increasing CO2 at an alarming rate. What is the problem and what is the best set of solutions that we can come up with. Having made that statement, I will have to leave and go vote in another committee. So, sorry. You can respond for the record to the chairman, but I do have to leave and I apologize. Mr. CALVERT. I thank the gentleman’s attendance. You are a brave man. Anybody that wants to raise gas taxes and bring on nuclear power, you are a brave guy. [Laughter.] Mr. EHLERS. I did not say that. Mr. CALVERT. Any comment from the panel on Mr. Ehlers’ comments? Yes, Mr. Guzy? Mr. GUZY. If I may, I would just point out that the second part, and a very critical part, of the EPA legal memorandum points out a very similar point, that existing authorities do not easily lend themselves to cost-effective mechanisms to impose a cap and trade program. The administration clearly favors those kinds of emissions trading programs as the most cost-effective means for achieving the needed greenhouse gas reductions. And further, the administration has pledged to work with Congress on finding appropriate legislative proposals to be able to accomplish those means in a costeffective way. So we would very much agree—not with all of the particular proposals that he may be contemplating, but the general—— Mr. CALVERT. You are not going to resubmit the BTU tax? Mr. GUZY. Right. But certainly with the general point that the administration and Congress would do well to work together to address these issues. Mr. CALVERT. I thank the gentleman. The gentleman from Georgia, Mr. Barr. Mr. BARR. Thank you, Mr. Chairman. Mr. Chairman, I am always amazed at the imagination possessed by Clinton administration lawyers to find statutory authority wherever they want to find it but to ignore wherever there is a prohibition. Just recently one of your colleagues, Mr. Guzy, from HUD, in answer to a question posed at a hearing trying to establish some basis for the Clinton administration Department of Housing and Urban Development involving itself in suits against manufacturers of firearms, pointed simply to prefatory general language to a statute regarding HUD housing authorities talking about providing an appropriate and safe environment as providing expressed statutory authority for the agency to involve itself in lawsuits against the manufacturer of a lawful product. A couple of years ago we had an attorney from another department, it may have been State or the FBI, in response to a question that I posed at another hearing asking what was the authority for VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 75 the FBI to send its agents overseas to investigate a case not involving a U.S. person or U.S. interest, but to investigate a case involving purely a foreign matter and foreign nationals having nothing to do with the United States, and they pointed to a statute that provided the authority to send agents overseas to investigate cases involving U.S. persons and U.S. interests. And we just got involved in a circular argument. And here today, I am not quite sure what your position is, but I am sure it is one that careful thought has been given to to try to get around the long-standing rules of statutory construction. Twenty years ago, when I did legislative work for the CIA, it was well-known at that time, and maybe you can cite me some Supreme Court authority that overturns the legislative history notions at that time, it was well-established that if Congress intends to grant a Federal agency power it must do so expressly. As a matter of fact, also a statutory rule of long standing cites that if a number of specific authorities are granted, there is a clear implication, of which courts will take notice, that anything else is not included by clear implication. And, yet, I think you are now saying that simply because Congress lists a number of areas in which they want EPA to become involved, simply because they did not include something that you now want to include, the implication should be otherwise. I do think that is contrary to general notions of statutory construction. In a number of instances where EPA has tried to claim authority to regulate carbon dioxide, whether it is section 111 of the Clean Air Act, or 112, I think you are, to put it mildly, on very, very shaky ground. I think you are clearly on wrong ground. It may be that as a policy matter you just want to involve EPA in CO2. But I do not think that you can do so legitimately based on normal rules of statutory construction because Congress nowhere has granted that expressed authority to EPA. And as a matter of fact, in those instances such as we are talking about here today where Congress has given EPA authority to address as pollutants certain materials in the ambient air, CO2 is not listed. So I really am intrigued by your arguments. I would be interested if maybe you could address it once again, because I think your colleagues at the table here have a different understanding of statutory construction as well. Mr. GUZY. With all due respect, Congressman Barr, our argument is not that we find this authority simply through implication. Rather, our position is that the source of authority is rooted in the statutory text itself, that it is not premised purely upon a desired policy outcome. And I want to be very clear about that. I ran through it before in my testimony, but I would be happy to—— Mr. BARR. It is not the policy of the Clinton administration through EPA to regulate CO2? Mr. GUZY. Let me also be clear, I made this clear before, this is very much a theoretical argument. EPA does not currently have a proposed regulation. We do not have plans to marshall the authorities that Congress provides in the Clean Air Act to address CO2. VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 76 Mr. BARR. OK. Let me then pose you the following two very specific questions, which I think are very consistent if you mean what you just said. Your testimony seems to reiterate the administration’s commitment not to implement the Kyoto Protocol before it is ratified. Mr. GUZY. That is absolutely correct. Mr. BARR. But you also seem to be claiming that EPA does have the authority to regulate CO2 emissions. Mr. GUZY. We believe that the Clean Air Act does provide that authority, yes. Mr. BARR. Then notwithstanding that, and based on what you said previously, can you assure the subcommittee that even though EPA believes it already has the authority to regulate CO2, EPA will not do so until and unless the Protocol is ratified? Will you give us that assurance? Mr. GUZY. I will assure the subcommittee of the following. We do not intend to implement the Kyoto Protocol before it is ratified and unless and until it is ratified by the Senate. Mr. BARR. You would certainly not do something that you do not intend to do. Mr. GUZY. And we have no plans to use our existing authority to regulate carbon dioxide. But to go further than that and try and anticipate all of the ways in which in the future it may be appropriate or not appropriate to use the authority that Congress has provided in the Clean Air Act to EPA would not, in our view, be responsible. Mr. BARR. Are you saying then that if the EPA determines that CO2 emissions endanger public health, welfare, or the environment, that the EPA may regulate CO2 even if the Senate does not ratify the Kyoto Protocol? Are you trying to have it both ways? I admire you if you are trying to do that. I know that you all do that. Is that what you are trying to do here? Mr. GUZY. You have hit on an important point. I think the critical point is that, although in our opinion there is broad authority to regulate CO2, the act did cite carbon dioxide to be within the class of substances that could be subject to regulation under the Clean Air Act. Mr. BARR. Not under section 112 though. Mr. GUZY. Well, perhaps. Mr. BARR. Section 112 lists several dozen items, but not CO2. Mr. GUZY. I am talking about the general definitional terms of the act for air pollutant. Nonetheless, there would be a series—— Mr. BARR. Which, according to that broad interpretation, the definition could mean anything absolutely that is in the air. Is that how broadly you are interpreting it? Mr. GUZY. But if I could go on. But then there are a series of provisions that then follow. And were the administration to decide to pursue a regulatory approach, we would have to make through the formal rulemaking process a number of findings, the most critical of which would be that there is endangerment of public health, welfare, or the environment. And we have not commenced that process. We do not have plans to commence that process. Mr. BARR. Well, with good reason. That would make every one of us a polluter. VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 77 Mr. GUZY. It would be for, I presume, a specific chemical or a specific purpose. Mr. BARR. CO2. Mr. GUZY. And really recognizing, for example, in the ambient air quality standard provisions of the act, that there are specific sources that are specified that are required to be found the source of those emissions as well, diverse mobile or stationary sources, and I do not believe that the definition includes an individual breathing there. Mr. MILLER. If I could interject here. Of course, under the counterpart statute, the Clean Water Act, we are all polluters. Half of the pollution regulated under that statute is liquid and solid waste from humans. So you do not prohibit that. We effectuate different kinds of treatments for it. Mr. BARR. Do not even suggest that to the administration, please. [Laughter.] Thank you. Thank you, Mr. Chairman. Mr. CALVERT. I thank the gentleman. Just one quick question for Mr. Guzy before we go to the next panel. When is the administration going to submit the treaty for ratification to the Senate? We would like to see it go over there. Are you going to submit it next week, next month? Mr. GUZY. As the administration says, and other people can probably speak to it far better than I can, we are working hard to address the issues that the Senate raised in the Byrd-Hagel resolution. Mr. CALVERT. Do you have a timetable for when you are going to submit the treaty for ratification? Mr. GUZY. It really does depend on the work that is being done in the international negotiations. Mr. CALVERT. So you do not have a timetable to submit the treaty for ratification. Why is that? Why won’t you submit the treaty for ratification to the Senate? Mr. GUZY. Again, the administration’s commitment is to ensure that in fact there are the appropriate flexible mechanisms in place that—— Mr. CALVERT. It has nothing to do with the fact that you may not even have 10 votes over in the Senate for the ratification of the treaty? Mr. GUZY. Well, I can tell you what the administration’s commitment is, which is to work with developing countries and to ensure that there are flexible mechanisms in place. Mr. CALVERT. We certainly thank this panel for your testimony and for answering our questions. It was of great interest. This panel is adjourned. We will now move to panel two. We have Dr. Patrick J. Michaels, research professor of Environmental Sciences, University of Virginia; Dr. Christopher B. Field, Carnegie Institution of Washington, Department of Plant Biology, Stanford University, California; and Dr. Keith E. Idso, vice president, Center for the Study of Carbon Dioxide and Global Change, Tempe, AZ. I want to thank the witnesses. This committee swears the witnesses in. So if you will please rise and raise your right hands. Do VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 78 you swear to tell the truth, the whole truth, nothing but the truth, so help you God? [Witnesses sworn.] Mr. CALVERT. Let the record show that the witnesses answered in the affirmative. You may take your seats. We are under the 5-minute rule in this committee, so any testimony that you may have will be submitted for the record. We ask that you try to keep your oral testimony to 5 minutes or less so we can have time for questions and answers. With that, Mr. Michaels, you may begin. STATEMENTS OF PATRICK J. MICHAELS, PROFESSOR OF ENVIRONMENTAL SCIENCES, UNIVERSITY OF VIRGINIA, AND SENIOR FELLOW IN ENVIRONMENTAL STUDIES AT CATO INSTITUTE; KEITH E. IDSO, VICE PRESIDENT, CENTER FOR THE STUDY OF CARBON DIOXIDE AND GLOBAL CHANGE; AND CHRISTOPHER B. FIELD, STAFF SCIENTIST, CARNEGIE INSTITUTION OF WASHINGTON, AND PROFESSOR OF BIOLOGICAL SCIENCES, STANFORD UNIVERSITY Mr. MICHAELS. Thank you, Mr. Chairman. About 100 years ago mankind began in earnest to emit carbon dioxide into the atmosphere, and scientists recognized even 100 years ago there could be consequences. Svante Arrhenius, a Swedish scientist, in 1896 published a paper in the Journal of Philosophical Transactions, in which he calculated that doubling atmospheric carbon dioxide would raise the mean temperature of the planet about 5 degrees celsius. And if you read his paper carefully, for the current concentrations that we have emitted into the atmosphere, he is stating that we should have warmed the temperature about 3.25 degrees celsius. Through the course of the 20th century, people developed more finely scaled methods to estimate climate change. By 1990, the United Nations, in convening the Intergovernmental Panel on Climate Change, used a suite of climate models that suggested that the planet should have warmed about 1.8 degrees celsius as a result of what human beings have done to the atmosphere. The actual warming that we have seen is 0.6 degrees celsius, or about one-third of the amount that was estimated by the mean suite of climate models around 1990. This chart shows temperatures over the course of the last 100 years, and estimated temperatures for the last 400 years, along with solar activity that has been calculated by two NASA scientists, Lean and Rind. The solar activity is the closed dot here. You can see solar activity is as high as it has been in the last 400 years. The conclusion, regardless of all the news stories that we hear, Congressman, is that if this were not the warmest decade in the last 400 years, there would be something wrong with the basic theory of climate, which is that the sun warms the Earth. Now, when we examine the behavior of the temperature in the last 50 years or so, we see something very interesting emerging that leads one to think that human beings might be changing the climate, because the character of the warming of the last 50 years is different than the character of the warming of the previous 50 years. By and large, it is a warming of the coldest air masses in VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 79 the winter. Vital statistics in the United States show these to be the deadliest air masses that we know of. This is the temperature change since World War II in the winter in both the northern and southern halves of the planet; the seasons are flipped at the equator, it is the cold 6 months of the year. You can see the very, very large warming here in the dead of Siberia in the middle of winter, and in northwestern North America. These are the source regions for these very fatal and cold air masses. Elsewhere there is very, very little warming on this chart. In fact, greenhouse theory predicts that a cold dry atmosphere will warm a lot more than a warm wet atmosphere. If we take a look at the ratio of winter to summer warming, we see something emerging. More people die in the winter, by the way, from the weather than die in the summer. Since World War II, we see that over two-thirds of the warming that has occurred has occurred in the winter half year rather than the summer half year in the northern hemisphere. Now getting back to this notion of the warming being mainly concentrated in these very, very cold air masses in Siberia and northwestern North America, the next chart I really would urge you to pay attention to. It shows the average warming trend within these extremely cold air masses. These average about minus 40 degrees celsius; they have warmed to about minus 38 degrees celsius. I do not hear the citizens of Russia clamoring for a return to the climate of the Stalin era. These over here are about minus 30 degrees celsius, maybe have warmed to about minus 29 degrees celsius. Now the average warming in these very cold air masses is shown in the bar chart on the right. It is 0.214 degrees C per decade, or about 2.1 degrees per 100 years. In other words, that is how much it is warming here in these deadly air masses. In the rest of the northern hemisphere, the average warming in each one of these little boxes that you see, and this is the United Nations Climate Record, is 0.021 degrees celsius per decade. Twohundredths of a degree celsius per decade in the northern hemisphere cold half year outside of Siberia and northwestern North America. It works out that three-quarters of the warming of the winter half year is taking place in those very, very cold air masses, and two-thirds of the overall warming of the last 50 years is taking place in the winter. Do the math. Most of the warming is confined to air masses that are inherently deadly and inherently cold. Now, when I began, and I will be done, mercifully, shortly, when I began I noted that the warming was not as much as was predicted by the models that served as the basis for the United Nations in 1990, the report. The ostensible reason for that is something called sulfate aerosol which does not exist in the southern half of the planet in any significant form. The idea is that sulfate aerosols are cooling the warming that should be occurring. Only look at the satellite temperature history from the southern hemisphere of the planet. It is very obvious that there is no warming in this record whatsoever. It is also very obvious that there was a ˜ big El Nino in 1998 and that is over; we are not having monthly press conferences now about the temperature of the planet being warmer than heck. VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 80 Well, the sulfate argument probably does not work. And it is doubtless that those satellite temperatures are correct. This record here shows the satellite temperature record, in this shaded area here that is flat, the open circles are weather balloon records from 5,000 to 30,000 feet, and the closed circles are ground-base temperatures. The ground-base records are going up. The atmosphere is not warming above 5,000 feet. Every climate model that we have, and this is typical of them, I will go back, predicts a warming in the range of 0.23 degrees celsius per decade in the entire atmosphere, all the way up to the stratosphere. From the surface all the way to the tropopause, an average of 45,000 feet, to be warming that much. These are the warmings that are occurring between 5,000 and 30,000 feet, depending upon what record you use. This is a typical computer model—and I am just about to end— this one from the Lawrence Livermore National Laboratory. This is north, this is south. Everywhere where it is orange or yellow it is predicted to have warmed in the last 25 years and then it cools in the stratosphere. There is no warming in the last 25 years in all the records that we can find in that zone. Now, I am going to turn the tables here and close with what I want to call reverse argument. Let’s say that all that money that we have spent on climate change has bought us something; I do not know what, but let us say it has bought us the fact that we know the way the climate changes once it starts to change. This is a series of outputs from various computer models. I would like to draw to your attention that once the planet starts warming, it warms at the same rate that it began to warm. It warms at a constant rate. It does not warm at an increasing exponential rate. There are various assumptions in these models; some of them have sulfates in them, some of them do not, some of them have the real way that CO2 is changing in the atmosphere, which is the low one down here, others do not, and we have nature since 1968 warming up the surface temperatures of our planet. I believe nature has already given us the answer on global warming. There is the trend of the last third of this century extended out under the assumptions that all the climate models make, that the warming is a straight line. It works out to 1.3 degrees celsius over the course of the next 100 years. Because of the winter-summer differential, it is about 1.5 degrees in the winter, 1.1 degrees in the summer. Hard to call that a pollutant. Thank you very much. [The prepared statement of Mr. Michaels follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 81 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 82 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 83 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 84 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 85 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 86 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 87 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 88 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 89 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00094 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 90 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00095 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 91 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 92 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 93 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00098 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 94 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00099 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 95 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 96 Mr. CALVERT. I thank the gentleman. Mr. Field. Mr. FIELD. Chairman Calvert, members of the committee, I appreciate the opportunity to address this hearing. My remarks today will focus not on the legal issues, but on the plant physiology. I will emphasize three points. First, atmospheric CO2 is essential for life on Earth; second, the concentration of CO2 in the atmosphere has increased dramatically over the last century, as a consequence of human actions; and third, increasing atmospheric CO2 has a mixture of positive and negative effects on plant growth, food security, and natural ecosystems. Adding the prospect of human-caused climate change tends to make the overall impacts more negative. Let me explain each of these points. First, atmospheric CO2 is essential for life on Earth. I think we generally agree on that. Plants growth through photosynthesis, a process that uses the energy from sunlight to combine carbon dioxide from the air with water to make carbohydrates plus oxygen. The carbohydrates formed through photosynthesis feed not only the plants, but almost all other organisms on Earth, including those that eat plants and those that eat the animals that eat the plants. Of course, humans are included in the group that depends on the products of photosynthesis. Second, the concentration of CO2 in the atmosphere has increased dramatically over the last century, as a consequence of human actions. As Dr. Michaels has already explained, at the beginning of the Industrial Revolution, before the extensive use of fossil fuel by humans, the concentration of CO2 in the atmosphere was about 280 parts per million, or about 0.28 percent, and it has increased by about 30 percent, so that now a little less than 1 cubic inch of each cubic foot of the atmosphere is composed of CO2. We know, based on measurements in ice cores, that the current concentration of CO2 in the atmosphere is higher than it has been at any time in the last 400,000 years. The third point I want to make is that increasing atmospheric CO2 has a mixture of positive and negative effects on plant growth, food security, and natural ecosystems. I will comment first on food production. Most of the world’s plants use a mechanism for photosynthesis that is through two sensitives. Photosynthesis, or CO2 fixation, increases when the CO2 concentration increases. For many crops, under current conditions this means that crop growth rate also increases. And in large number of experiments, crop growth under doubled atmospheric CO2 increases by 10 to 50 percent. The CO2 sensitivity does not apply uniformly to all crops. Some important crops, most notably corn and sugar cane, use a different photosynthesis pathway called C–4. For these crops photosynthesis does not increase with increasing CO2, and growth increases only a little bit. In the absence of other factors, the direct effect of increased CO2 on crop growth would very probably lead to higher global food production. Now whether or not this is a benefit from the perspective of U.S. agriculture will depend on world market conditions. It is also very short-sighted to think only of the effects of CO2 on crop photosynthesis. At least three other factors need to be con- VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00101 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 97 sidered. First is losses to pests. Several studies show that insects fed plant material grown in elevated CO2 eat more than if fed the same plants grown at normal CO2. Thus, losses to pests could potentially increase, or investments in pest control could increase. Second is weeds. Weeds tend to be stimulated as much by elevated CO2 as the crops, and especially for crops such as corn with the C– 4 photosynthesis. Many of the major weeds have normal photosynthesis and would most likely be more stimulated than the crops. Third, and probably most important, is climate. Evaluating effects of CO2 on food production without considering CO2 effects on climate is like evaluating DDT based only on its short-term effects on insect control. DDT is a very effective insecticide, but its long-term impacts on other animals is so negative that it would be a big mistake to consider the effects on short-term insect control in isolation. The situation for CO2 is strongly parallel. The connection between atmospheric CO2 and climate is increasingly well-understood, with a vast body of evidence indicating that continued increases in atmospheric CO2 and other heat-trapping gasses will lead to gradual warming of the Earth, the exact amount is still somewhat uncertain. But the Earth has clearly warmed in the last century. And the consensus of the Intergovernmental Panel on Climate Change, which is the collaborative effort of the world’s scientists asked to evaluate climate change for the world governments, is that this warming already has the signature of a human caused component. With a warming climate, many, or even all, of the stimulatory effects of elevated CO2 on crop photosynthesis may be eliminated. Recent models of the impacts on U.S. agriculture over the next century, with a combination of elevated CO2 and warming, indicate that the negative effects of climate change, changes in temperature and precipitation, will approximately cancel stimulatory effects of increased CO2. In natural ecosystems, elevated CO2 has similar effects to that on crops, increasing photosynthesis in most plants. In experiments where CO2 is increased, plant growth often increases, though the growth responses tend to be smaller, sometimes even absent in natural ecosystems. Very few experiments have examined the combined effects of elevated CO2 and climate change. This is an area where additional information is critical. If I could have 1 more minute, please. But plant growth is not the only important property of natural ecosystems. Features like recreational value, watershed protection, and biological diversity are also important, potentially sensitive to the direct and indirect effects of elevated CO2. Changes in these values are difficult to predict and could be highly variable from place to place, but some results are suggestive. In studies of California grasslands exposed to elevated CO2, weedy species, with profoundly negative effects on grazing and recreational values, tend to be those that are most strongly stimulated. Many studies report large differences among species and which ones are stimulated and which are not by elevated CO2, and, so far, it is really difficult to have any strong predictions of effects on elevated CO2 on biological diversity. If the winters are weedier introduced species, the effects on biological diversity could be strongly negative. VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00102 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 98 In sum, atmospheric CO2 is a critical component of the atmosphere, but increases in concentration resulting from human actions can have both positive and negative impacts on agriculture and on natural ecosystems. Any negative impacts expressed through climate change will, of course, affect sectors other than agriculture and natural ecosystems. Thank you, Mr. Chairman. [The prepared statement of Mr. Field follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 99 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 100 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00105 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 101 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 102 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 103 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00108 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 104 Mr. CALVERT. I thank the gentleman. Mr. Idso. Mr. IDSO. I am going to put a carousel in here. I was unaware that I could use slides today, so I just ran over and grabbed a few from my motel room. Briefly, I would like to thank the chairmen and the committee members for having me come out today to testify on behalf of carbon dioxide. Carbon dioxide is not a pollutant, contrary to what some people may tell you. Carbon dioxide is colorless. It is odorless, and it is a trace gas that exists in the atmosphere. Again, you have heard that its current atmospheric concentration is so small, it exists at only 0.036 percent. But, again, because of mankind’s industrial activities and consumption of fossil fuels, the amount of carbon dioxide in the air is increasing and probably will double within the next century. So, even if it doubles, big deal. It is still going to be a trace gas. You have already heard the preliminary argument that carbon dioxide is essential to life on the Earth, and I concur with that premise. Many, many studies have looked at plant responses to increasing carbon dioxide. This study represents nearly 1,100 observations that demonstrates what happens to plant growth when the amount of carbon dioxide in the air is doubled. Basically, with more carbon dioxide in the atmosphere, plant growth is going to increase. And that is exactly what typically occurs. And for a doubling of carbon dioxide, this particular study showed an average increase in plant growth of 52 percent. There are some individuals that have criticized this positive growth response, saying that it will not be as great due to the fact that out in natural ecosystems there are certain environmental stresses and resource limitations that may decrease the beneficial growth response of plants to higher levels of carbon dioxide. However, in reviewing the literature again, looking at nearly 300 published observations, we find that just the opposite tends to occur. In other words, plants benefit even more in their growth response to carbon dioxide when they are being stressed by resource limitations or certain environmental factors. That brings us to global warming. There is no compelling reason to believe that increasing atmospheric carbon dioxide levels must be forcing temperatures upward. However, in analyzing 42 peer-reviewed studies, it has been determined that if the amount of carbon dioxide in the air doubles, plants can shift their optimal growth temperature upwards by nearly 6 degrees celsius. Clearly, this upward shift in growth temperature can more than account for any global warming that may happen in the next hundred years, as predicted only by climate models. In other words, plants will not be forced to migrate to cooler regions. Instead, plants will exist at their high temperature boundaries and grow even better than they did before atmospheric CO2 levels rose or air temperatures increased. So plants will maintain their biodiversity at the warm ends of their temperature boundaries. However, at the cool end of their temperature boundaries, due to the warming that is happening, plants can actually expand into new regions and begin colonization. When they expand there, bio- VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 105 diversity will increase. And as herbivores that feed upon the plants follow them into new areas, herbivore biodiversity also increases. And then carnivores that eat the herbivores follow along. Across the globe many of the ecosystems will experience an increase in biodiversity. So, in conclusion, I just want to summarize again that carbon dioxide is vital for life on the Earth. Plants do respond favorably when atmospheric carbon dioxide levels increase; they do produce much more yield and fiber. Hence, there is more agronomic production to allow for feeding and clothing—and timber production—to provide fuel and shelter to the increasing population of humanity. So I would recommend to the chairmen and the panel today that they do whatever they can within their legislative powers to ensure that carbon dioxide levels are not restricted, and that the amount of carbon dioxide in the atmosphere be allowed to continue to increase to provide for the benefit of all humanity and biodiversity as well. Thank you. [The prepared statement of Mr. Idso follows:] VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00110 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 106 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00111 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 107 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00112 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 108 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00113 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 109 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00114 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 110 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00115 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 111 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00116 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 112 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00117 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 113 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00118 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 114 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00119 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 115 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00120 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 116 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00121 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 117 VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 118 Mr. CALVERT. I thank the gentleman. Mr. Michaels, I could not help but observe you brought a couple of beakers with you. I thought I would ask what that is all about. Mr. MICHAELS. Actually, I often travel with these beakers, Congressman. [Laughter.] Let me change the slide tray, if I could. You have heard that there is some controversy about the projections of climate change versus reality. I would like to examine just for a moment, or illustrate just one of the problems. This is the Lawrence Livermore National Laboratory circulation model. I am not picking on it; it just happens to be one that is readily available. They all do essentially the same thing. This again is north, this is south, and this is going up 5,000 feet, this is the top, what we call the troposphere, about 40,000 feet. You can see that it warms. In fact, it is predicted to warm by the ensemble of climate models serve as the basis for the Kyoto Protocol 0.23 degrees celsius per decade. That whole zone is forecast to warm like that. Well, this little beaker here can be our whole atmosphere. What I have done here is I have put a little dye in here, I am going to fill this up to 1,000 millibar or 1,000 milliliters, which is the depth of the tropopause, and you can see what is predicted to happen. That is a pretty red cylinder, isn’t it? Now what happened in the course of the last two decades is that while this is predicted to happen, we had a warming in the lowest regions of the atmosphere, as I mentioned in my oral testimony. The bottom 5,000 feet warmed up. Not as much as the whole atmosphere was forecast to warm. So this bottom 5,000 feet that is in this beaker is pinker than this. But our understanding of climate change warms up the entire bottom 50,000 feet. So if you want to see how far off the projections are that serve as the basis for the Kyoto Protocol, I will have to average this warming through the entire atmosphere, which I am going to do right now, average the surface warming, pour in some nice, clean, unpolluted, no CO2—excuse me, I better not use that word polluted—nice, clean air into our atmosphere. There is what serves as the basis for the Kyoto Protocol, and there is reality, Congressman. I think we have a problem. That is why I brought these cylinders with me. Mr. CALVERT. I thank the gentleman. Dr. Idso, you recently completed a study claiming that higher CO2 levels will reduce world hunger, as you were talking about. Please briefly describe the study and assess the implications for global food security of Kyoto-style policies. Mr. IDSO. Basically, in the food study, we used United Nations food production data, looking at how much food was produced in the past, and we determined how much food will likely be produced in the future due to mankind’s continuing ingenuity and agricultural advances. We also know what the projected human population is going to be. And assuming that we maintain the current standard of living, any additional increase in human population should correlate to an equivalent increase in agricultural yield. By restricting carbon dioxide levels according to the Kyoto Protocol, we determined that mankind’s ingenuity alone will not produce enough agricultural yield to feed the human population. However, VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00123 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 119 if carbon dioxide levels are allowed to continue to rise unrestricted in the atmosphere, the beneficial growth enhancement resulting from that phenomenon, combined with mankind’s intellectual knowledge and agricultural techniques, will make up the difference and the world will be food secure. Mr. CALVERT. That is interesting. You are almost saying that rather than CO2 being a pollutant, it is a beneficial gas. Mr. IDSO. That is precisely correct. Mr. MICHAELS. With all due respect, Mr. Chairman, those cold air masses kill a lot more than warm air. Mr. CALVERT. Dr. Field, to what extent does your research show that elevated CO2 levels in general have the following beneficial effects: Increased plant photosynthetic rates, increased plant water use efficiency, increased plant resistance to heat stress, raise the optimum growth temperature for plants? Mr. FIELD. Congressman, I believe it is fair to say that the sum of approximately 3,000 studies now published in the literature indicate that elevated CO2 has effects on each of those properties in the direction that you have indicated. Plants generally do better under elevated CO2; better in terms of growth rate, in terms of the high temperature performance, and in terms of ability to tolerate water limitation. I will say, however, that that does not necessarily speak directly to the changes in plant production under a future scenario that includes the combination of warming and elevated CO2. The issue is that elevated CO2 helps the plants cope with conditions that are otherwise deleterious, but it may or may not overcome the deleterious effects. Mr. CALVERT. Yes, because it seems Dr. Idso would say, I presume based upon your testimony and the previous question, that rising temperatures would be more likely to enhance the benefits of CO2 enrichment. Would that be correct, Mr. Idso? Mr. IDSO. That is correct. Based on the research that I have looked at, the 42 studies, there is a positive interaction between temperature and carbon dioxide, wherein the CO2-induced growth response is typically greater with higher temperatures. Mr. CALVERT. Do you have any comment about that, Mr. Field? Mr. FIELD. The important issue to keep in mind about the interaction between climate change and elevated CO2 is that climate change is not just warming. Much of the world is projected to suffer increased water shortages under a global scenario. The lack of water and the elevated crop production scenario all tend to depress crop production relative to what you would expect under current conditions. And as I said in my testimony, the current ensemble estimate is that, in general, the beneficial effects of elevated CO2 will more or less cancel the deleterious effects of the climate changes in the United States. In other parts of the world, particularly in the tropics, the effects of the warming are expected to be greater than the effects of the elevated CO2, with overall deleterious effects on food production. Mr. CALVERT. I presume, Mr. Michaels, you want to comment on that? Mr. MICHAELS. Yes. Carbon dioxide has increased effectively from about 270 parts per million background from the beginning of VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00124 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 120 the Industrial Revolution to effectively about 450 today with all the greenhouse gases in the atmosphere. We have these projections for increased drought, that I just heard about, interacting with the food supply. Fortunately, we do have a record of this. I thought you might like to see this slide. The area on the bottom is the intense drought history in North America. What you can see is there is no change whatsoever from 1895 to now. If we take a look at the wetness in North America, it has increased. So what we have done is we have not increased the droughtiness, we have increased the moisture in the atmosphere, and, by ameliorating the coldest air masses, we have slightly lengthened the growing season. Well, North America happens to be the world’s bread basket. So I think these arguments deserve a little bit of attention to reality before they are tendered. Thank you. Mr. CALVERT. Mr. Ehlers. Mr. EHLERS. I apologize that I had to go to another committee to vote and missed the testimony, although I had read it before coming here. The question that is being heard today is, is CO2 a pollutant, and does EPA have the power to regulate it? That was addressed primarily by the attorneys in the first panel. I take it that you are not really addressing that so much as the issue of whether or not the increased CO2 contributes to global warming or to global climate change. Am I correct? And I have to ask this simply because I was not here. Mr. FIELD. That is correct. Mr. EHLERS. That is correct. OK. And from your written testimony, I did not reach any conclusions as to what you were saying, other than increased CO2 promotes plant growth. Increased CO2, according to Mr. Michaels, is not that much of a problem. And Mr. Field, you say it may well be a problem. Is that a fair characterization or summary of the testimony? Mr. FIELD. Yes, I agree. Mr. EHLERS. OK. Now what I would like to get at, I am not as concerned personally, as I mentioned earlier, about the global warming because I think the jury is out on that one yet. But I think the scientific jury is still open but starting to reach some conclusions about global climate change. By that, I mean the amount of vapor in the air, particularly the number of clouds which have an impact on both the warming of the Earth and the reflection back to space, the increased rain in some locations, increased drought in others. I think one of the key points in my mind, and I would like your comments on this, is that it is going to be quite some time before we really understand these effects well enough to tell what the net impact is, particularly, the greatest difficulty is going to be to state in some fairly precise fashion what the impact is for certain places on the surface of the Earth. It seems to me we are likely to have beneficial effects in a number of places, we are likely to have deleterious effects in a number of other areas. I am just wondering if any one of you can lay out for me a game plan of how you and other members of the scientific community are going to approach this in terms of trying to pin down, as best you can as time goes on, what these climate change effects are. Not just what climate change takes place, but the effects of that change. As VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00125 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 121 starting from the most certain, we know that CO2 is increasing, no question about that, we even have a fairly good idea of the projected rate it will increase. The next level of certainty is what is the impact of this on global warming. The next level, what impact is it on global climate change. And finally, the question I am raising, is what are the specific pluses and minuses of the climate change in various locations of the Earth. Now, what would be the program to determine that? Roughly, what is the time scale of knowing results well enough so that we can take legislative action? Mr. FIELD. Congressman, I think you have characterized the problem in a very eloquent way. The easiest problem to get a quantitative handle on is the CO2 rise. The second problem in terms of increasing difficulty is whether or not there has been warming. Dr. Michaels has already addressed that, and, I think importantly, you could see from his results that the actual warming to date is within the range of the climate model predictions. The next most difficult problem that we still have not addressed in a comprehensive way is the whole suite of changes in climate that accompany the warming. And the most difficult challenge is nailing down the spatial locations of the climate variations. The biggest component of progress in terms of all of those is to get the climate models to work in a way so that they accurately reflect the physical processes in the environment, including a number of feedbacks that have been difficult to represent. There has been tremendous progress over the last 10 years or so, so that climate models are accurately reproducing temperatures. The best models are very, very close to the observed record. But I think the climate community is also very clear about the prospect or rapid increases in the accuracy of regional predictions, which will probably not come within the next few years. I think we are looking out at least a period of a decade until we can be confident about regional changes either in temperature or in precipitation. Mr. EHLERS. Just a quick question on that. Is that because of the need for larger computers, or is it because of deficiencies in the model, or is it because we have too course a grid in many parts of the globe? Mr. FIELD. There are a number of factors that contribute to it. Part of it is that the climate models are, as you know, very, very complicated computational problems and we have been working at the very limit of the ability of the super computers to process them. Another limitation, however, has been that the observational evidence on the nature of some of the feedback mechanisms that could be very powerful is still incomplete and we need additional observations. Many of those are coming from recent satellites launch by NASA and the European Space Agency. NASA is planning major launches in the next 2 years that should address a number of these mechanisms. And it is really the feedback between the improved observations and advances in the computational power that will let us address the questions over the next few years. Mr. MICHAELS. Congressman, if I could—— Mr. EHLERS. Yes. Mr. MICHAELS. Let me just show you something that I showed earlier that I think you are going to find quite interesting. This is a suite of general circulation climate models. You probably recog- VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00126 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 122 nize some of these acronyms here. That is National Center for Atmospheric Research. That is the British Hadley Center. This is the Geophysical Fluid Dynamics Laboratory. And each one of these models has different assumptions. This one here, down here, I adjusted for the actual increase in carbon dioxide that has been observed in the last 30 years. These models tend to use too large of an increase; they tend to use 1 percent per year. The actual integrated number allowing for all the trace gases, and this is according to James Hansen from NASA, is actually about 0.4 percent per year over the course of the last couple of decades. But what I want to draw your attention to, Congressman, as a scientist, what you see here is that the functional form of the response of each of these is the same, isn’t it? They are all straight lines. So all that differs between these models is the slope of the line. Now, having established that, I will then submit to you what these models say is that once greenhouse warming begins, it takes place as a straight line. Remember, these models all have exponential forcings in them, Congressman; they have percent per year. So you have an exponential change in the greenhouse forcing but you get a linear change in the temperature. The United Nations has said that there is a discernible human influence on global climate. Let us assume what people think they said is what they said, that changing the greenhouse effect is altering the climate. The next question is, is the temperature changing in a linear fashion, and, if it is, then nature has decided the slope of this line. And she has. It is this line right down here, at 1.3 degrees celsius per decade. Unless, Congressman, the functional form of every climate model is wrong. So I think we know the answer now. Thank you. Mr. EHLERS. Let me just ask one related question in terms of the fact that this is a linear—— Mr. MICHAELS. They all are. Mr. EHLERS. Even though the forcing functions, as you said, are exponential in nature. Now, does this have to do with the fact that CO2, as an example, is pretty well opaque already and so that it—— Mr. MICHAELS. It eventually saturates for each given wage length, that is right. Mr. EHLERS. They are logarithmic because you are just dealing in the wings of the curve, is that correct? Mr. MICHAELS. Correct. Mr. EHLERS. So that would explain why you get a linear function. Mr. MICHAELS. Plus the oceanic thermal lag, also. Mr. EHLERS. OK. Mr. CALVERT. Gentlemen, we probably have time for Mr. Barr to ask a couple of questions, and then we have to go for a vote. Mr. EHLERS. Oh, I am sorry. I thought he had already. Mr. CALVERT. No, he has not asked. Mr. EHLERS. In that case, I will withhold the rest of my questions. Mr. BARR. I will yield you some time since you obviously know more about linear functions, exponential functions, and so forth, all VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 123 of which have nothing to do with the real world of politics. [Laughter.] We have this marvelous exhibit here that seems self-evident. I am sure that if a picture is worth 1,000 words, this was worth, at least to myself and I suspect the chairman, who are not as educated as you are, Professor, in the technicalities of this stuff, it is probably worth about 10,000. But that certainly does not stop politicians from completely ignoring it. It may have something to do with the rose-colored glasses they wear. I think that would cancel out the differences in coloration in the tubes there. [Laughter.] But it really is very, very interesting. I appreciate, Mr. Chairman, you and Chairman McIntosh bringing these two panels of legal experts and scientific experts here today. In listening to the different conversations here, I think I understood Dr. Field to contend that a warmer climate may cancel out many, or even all, of the benefits of the CO2 enrichment that you discussed, I would just ask you, Mr. Idso, would rising temperatures be more likely to negate or enhance the benefit of CO2 enrichment? Mr. IDSO. Based on all the literature that I have seen published out there, in the clear majority, rising temperatures would enhance the CO2 benefit. In cases where it negates some of the benefit, what I have seen, that negating is just very small, so there are still net positive gains in the long run. You just do not have as great an increase, so it would be slightly reduced by the high temperature in those few cases. Mr. BARR. And I presume that these studies that you are talking about are based on a number of different experts and studying scientific data over long periods of time and with all sorts of variables and so forth? Mr. IDSO. With respect to temperature, there are 42 studies that I am aware of that I have actually looked at and analyzed. The literature is just now looking at different types of interactions. You saw earlier, I actually put the slide up showing the interactive growth response of plants to elevated carbon dioxide when they lacked water. In those cases where water is limiting plant growth, you do not see a cancellation of the CO2-induced growth benefit. Typically, the growth benefit is even greater when plants are lacking water in the soil. So you do not see it negating or canceling out their positive growth responses to atmospheric CO2 enrichment. Mr. BARR. Was this discussed in that great scientific treatise ‘‘Earth in the Balance’’? Mr. IDSO. Probably not. Mr. FIELD. The answer is, no. Mr. BARR. I did not think so. Unfortunately, Mr. Chairman, and this is another reason why it is good to have this hearing today, these findings and these conclusions do not make the headlines of the papers, only the scare stories about global warming and so forth do. So I appreciate all three of you gentlemen bringing your expertise here and, through you, the expertise of many of your colleagues reflected in these studies. Thank you all very much. Thank you, Mr. Chairman. Mr. CALVERT. I thank the gentleman. VerDate 11-SEP-98 12:24 May 23, 2000 Jkt 000000 PO 00000 Frm 00128 Fmt 6633 Sfmt 6633 C:\DOCS\62900.TXT HGOVREF1 PsN: HGOVREF1 124 I thank the witnesses for their testimony today, and those in the audience who attended. It was an interesting hearing. We are adjourned. 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