In The Arena Yes, the EPA Has the Power to Stop Climate Change

Christine Todd Whitman is a former governor of New Jersey and former head of the Environmental Protection Agency.

The Environmental Protection Agency has the authority to address climate change. That shouldn’t be a controversial statement, but in some quarters, it is. Indeed, it’s at the heart of a set of legal challenges that will be heard by the Supreme Court on Monday.

As administrator of the EPA from 2001-03, I served in the administration of President George W. Bush. I may sometimes disagree with his successor on the best way to address climate change as a matter of policy, but I absolutely agree that the EPA has broad authority to issue regulations addressing climate change, including those being challenged by industry groups and their allies in Utility Air Regulatory Group v. Environmental Protection Agency, otherwise known as “the greenhouse gas cases,” or UARG for short.


Climate change is the defining environmental challenge of our time, and there are huge consequences for inaction — whether measured in human lives or economic disruption. Given these stakes, I wish Congress would step up and do its job, refining America’s approach to climate change and expanding the tools at the EPA’s disposal. In previous decades, the EPA could rely upon bipartisan majorities to revise the Clean Air Act and address new and growing air pollution problems directly. Today, gridlock and partisanship make such common-sense action all but impossible. Nevertheless, the Clean Air Act — as written — remains the most powerful tool the EPA has at its disposal to address the issue of climate change.

The Clean Air Act is concerned primarily with the federal government’s ability to address a cross-state, complex, nationwide problem — air pollution. Far from constraining the EPA’s authority or requiring it to return to Congress whenever it needs to address a new problem, the law provides the agency with sweeping authority to address new air pollution challenges as they emerge, including the serious threat posed by greenhouse gas emissions. Although Congress can still step in — as always — to alter the EPA’s course, the law itself is broad enough to ensure that the EPA isn’t powerless in the face of congressional gridlock and a cataclysmic threat.

The Supreme Court said as much seven years ago in Massachusetts v. EPA, with Justice Anthony Kennedy casting the deciding vote. As the court explained in that landmark decision, Congress chose to define the air pollutants covered by the Clean Air Act in “sweeping,” “capacious” terms—terms that easily cover greenhouse gases. This precedent is the foundation for all of the work the Obama administration is now doing to address climate change, including the regulations and related permitting scheme at issue in UARG.

Following Massachusetts, the EPA concluded that greenhouse gas emissions posed a real threat and issued an initial set of regulations covering mobile sources, such as cars. From there, the EPA extended an important permitting program to cover large stationary sources, such as power plants, as required by the plain text of the Clean Air Act and in keeping with the EPA’s longstanding interpretation of the act — an interpretation used for decades by Republican and Democratic administrations alike. This permitting program is one of the many ways in which the EPA combats air pollution; it’s a flexible way to ensure that major greenhouse gas emitters employ the best, most cost-effective technology for reducing emissions.

The D.C. Circuit Court — in a panel that included both Republican and Democratic appointees — concluded that the EPA’s extension of this permitting scheme to greenhouse gas emissions was “unambiguously correct” and “statutorily compelled.” This, however, didn’t stop industry groups and their allies from challenging the EPA’s decision, arguing that the agency’s authority was limited to local pollutants such as smog, not greenhouse gases — an argument rejected in Massachusetts and one that turns the Clean Air Act on its head.

For more than 30 years and during the administrations of five presidents — again, both Republicans and Democrats — the EPA has consistently and correctly interpreted this permitting program to apply to all pollutants regulated under the Clean Air Act. Far from “rewriting” the statute or bending the law to fit its climate change agenda, the Obama administration simply interpreted the law in the same way as its predecessors — this time to cover greenhouse gas emissions. This is a reasonable action consistent with the EPA’s mission and the Clean Air Act’s text and purpose.

Confronting climate change should be an issue that unites rather than divides us. And that includes the Supreme Court. Here’s hoping the justices make the right call.