New EPA Mandate!

Are you ready to report all of your greenhouse gas emissions to the United States Environmental Protection Agency (“EPA”)?  Get ready to do so!  It is mandatory by June 2009, according to Public Law 101-161 signed recently by President Bush (“the Act”).

In the age of “earmarks” that sneak into appropriation bills and cost the American taxpayer billions of dollars, Congress has engaged in something possibly worse than covert spending on pork-barrel projects.  Without debate, Senators Boxer and Feinstein, both from California, placed the directive in the Act which created a broad, open-ended new mandate in the form of a reporting program that no one but its sponsors would ever know existed and, in this case, what it means.

President Bush signed the Consolidated Appropriations Act, 2008 on December 26, 2007”).  Buried deep in the Act is a mandate that directs EPA to spend not less than $3.5 million to develop a rule “to require mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the United States.”  The Agency is required to publish a draft rule by no later than 9 months after December 26, 2007 and a final rule not later than 18 months after the same date.

Aside from the issue as to whether this rider is constitutionally vague, it provides neither definitions nor a basis to answer:

·        What is a greenhouse gas?

·        What is an emission?

·        What is an appropriate threshold?

·        What form will mandatory reporting take?

·        What does “in all sectors of the economy of the United States” mean?

·        How will failure to report be enforced?

It is generally assumed that the term greenhouse gases includes, among others, carbon dioxide, methane gas, and hydrofluorocarbons (“HFCs”).  Unfortunately the Act provides no answers to any of these questions.  Instead, it provides EPA with perhaps the broadest mandate the Agency has ever received. 

Carbon dioxide is exhaled out by every human and animal on the planet.

All farms produce carbon dioxide and methane.  In fact, it has been claimed that methane is emitted from manure, wastewater sludge, and municipal solid waste landfills.  Cattle belch methane.  Indeed 16% of the world’s annual methane emissions to the atmosphere come from cattle.  The livestock sector in general (primarily cattle, chickens, and pigs) produces, it is alleged, some 37% of all human-induced methane.  And, rice farming is a huge source of methane. 

HFCs are substitutes for CFCs that are being phased out under the Montreal Protocol for harming the ozone layer in the atmosphere.  They are used as solvents, household and commercial refrigerants, automobile air conditioning, firefighting agents, propellants for aerosols and home air conditioning units. 

In summary, almost every aspect of modern civilization may require reporting under the Act.  Obviously, if fully implemented, the Act will have a greater impact on the American society than most environmental laws.  For example, since all humans exhale carbon dioxide in their breathing, will commercial building owners be required to monitor their air emissions?  Will airlines have to monitor their flights?  Will farmers be required to report how many cattle or other livestock they may have.  And since some commercial dry cleaners have begun replacing the dry cleaning solvent perchloroethylene as a possible carcinogen with carbon dioxide, will dry cleaners also be required to report?

These are just some simple questions that one should ask after reading the appropriations directive.  The Agency will have no interest in minimizing the impact of these requirements.   Even if it made such an effort, how about the lawsuits from the environmentalists claiming that EPA has not gone far enough?

Finally, this gets us back to the first question which is — is this directive constitutionally vague?

Gary H. Baise and Anson M. Keller, attorneys at Kilpatrick Stockton LLP, Washington, D.C.