Sensenbrenner: EPA Settlement with NRDC Looks Too Much Like Kyoto Treaty Implementation

Sensenbrenner: EPA Settlement with NRDC Looks Too Much Like Kyoto Treaty Implementation
September 1, 1998



In a further escalation of tensions between Congress and the White House over global warming policy, House Science Committee Chairman James Sensenbrenner (R-Wisconsin) has voiced strong objections to a proposed consent agreement he says represents an attempt by the Clinton administration to implement the Kyoto Protocol prior to Senate ratification.

Sensenbrenner’s ire is directed at a proposed consent agreement intended to settle a lawsuit brought in 1992 against EPA by the Natural Resources Defense Council (NRDC). The suit alleges that EPA failed to list, and to determine whether to regulate, hazardous air pollutant emissions from electric utility steam-generating units, as required by section 112 of the Clean Air Act (CAA).

Under the proposed settlement, EPA agrees to “undertake and publish on [or before February 28, 1999] the results of an analysis of the emissions reductions of SO2, NOx, CO2, and mercury (and the effect of mercury removal costs) that would be achieved through an array of strategies to control SO2, NOx, CO2, and mercury.”

That requirement, Sensenbrenner wrote in a June 25 letter to EPA Administrator Carol Browner, contradicts repeated assurances from Clinton administration officials that the administration would not “undertake actions to implement the Kyoto Protocol before it is ratified and entered into force.”

“The agreement,” Sensenbrenner continued, “is a step toward implementation and appears inconsistent with this commitment. It should not be finalized.”

Sensenbrenner noted in his letter to Browner that the proposed settlement has no basis in law under section 112 of the CAA. Rather, the parties contend the agreement is authorized by a October 26, 1994 consent decree--which, Sensenbrenner notes, does not refer to CO2 and predates both the Kyoto Protocol and the first meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change.

“I therefore find it difficult to believe,” Sensenbrenner wrote, “that a 1994 consent decree is relevant to any greenhouse gas emissions subject to the Convention or to the Kyoto Protocol, particularly since EPA never recognized CO2 as a pollutant in 1994 for purposes under section 112.”

“As you know,” Sensenbrenner continued, “CO2 is one of several greenhouse gases covered by the recently adopted Kyoto Protocol, which has not been submitted to the Senate for advice and consent to ratification and which has not yet entered into force pursuant to its terms.”

Sensenbrenner strongly urged EPA and the Department of Justice, a third party to the settlement, to refrain from finalizing the agreement, “on the basis that it is inappropriate and improper in light of Under Secretary [Stuart] Eizenstat’s commitment to Congress on behalf of the administration and because it is inconsistent with the requirements of the Clean Air Act.”

The EPA administrator and U.S. attorney general are authorized, under section 113(g) of the CAA, to withdraw or withhold consent to the proposed agreement if public comments disclose facts or considerations indicating that such consent is inappropriate, improper, inadequate or inconsistent with the CAA.

Suspicion that the administration is trying to implement the unratified global warming treaty was heightened in February when an internal EPA memorandum was leaked to the press. The memo asserted that EPA had statutory authority under the CAA (section 112) to regulate CO2. While EPA’s interpretation of the CAA is open to question, Congressional opponents of the Kyoto Protocol pounced on the memo as an indication that the administration wanted to implement the treaty through the “back door.”

Sensenbrenner, an outspoken critic of the Kyoto Protocol, asked Browner to explain the nature of the analysis the agency is to carry out under the proposed consent agreement with the NRDC. He also requested information on how the agency will fund the proposed settlement. Browner has yet to respond to Sensenbrenner’s June 25 letter.