TURNING DOWN THE HEAT: WHAT
UNITED STATES LAWS CAN DO TO
HELP EASE GLOBAL WARMING
JENNIFER WOODWARD
INTRODUCTION
As the hottest year on record, 1988 may have presented a preview
of things to come.1 According to a new scientific consensus, global
warming has begun. 2 Global warming results from a phenomenon
known as the greenhouse effect.3 Carbon dioxide is the principal
1. See Weisskopf, 1988 Set Warmth Record, British Meteorologists Report, Wash. Post, Feb. 4,
1989, at A2, col. 5 (explaining that 1988 average year-round air temperature of earth was
57.6.1 degrees Fahrenheit, 0.61 degrees Fahrenheit higher than average for period 1950-79).
James E. Hansen, a climatologist at the National Aeronautics and Space Administration,
stated that the average temperatures for 1987-the previous highest average temperature
year on record-and 1988 are almost three times higher than would be expected from the
normal variations of weather recorded over the past 30 years; thus, this evidence strengthens
the contention that the Earth is undergoing a global warming trend. Id.
2. Jager, Developing Policiesfor Responding to Climatic Change at 1, U.N. Doc. World Meteorological Organization/TD-No. 225 (1988) [hereinafterJ~iger, Developing Policies];see also Greenhouse Effect and Global Climate Change: Hearings Before the Senate Comm. on Energy and Natural
Resources, 100th Cong., 2d Sess. 39 (1988) [hereinafter Hearings on Energy and Natural Resources]
(statement of Dr. James E. Hansen, NASA Goddard Inst. for Space Studies) (concluding that
global warming has reached level such that scientists can ascribe cause and effect relationship
between greenhouse effect and observed warming). But see Kerr, Hansen vs. the World on the
Greenhouse Threat, 244 SCIENCE, June 6, 1989, at 1041 (opining that not all of Dr. Hansen's
colleagues agree that greenhouse effect warming has been detected).
3. See Titus & Seidel, Overview of the Effects of Changing the Atmosphere, in UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, UNITED NATIONS ENVIRONMENTAL PROGRAM, I EFFECTS
OF CHANGES IN STRATOSPHERIC OZONE AND GLOBAL CLIMATE 8 (EPA and UNEP Study)
(J.
Titus ed. 1986) (describing greenhouse effect).
A study conducted in 1986 shows that the three warmest years between 1850 and 1984
occurred in 1980, 1981, and 1983, and that five out of the nine warmest years during the 134
year period came after 1978. MacDonald, Scientific Basis for the Greenhouse Effect, 7 J. PoL'Y
ANALYSIS & MGmT. 425, 439 (1988). Some critics, however, question whether these results
stem from the greenhouse effect, speculating instead that these higher temperatures may be
due to the "heat-island effect" in which cities, with heat trapping concrete, emit higher temperatures than surrounding suburbs. See Michaels, The Greenhouse Climate of Fear,Wash. Post,
Jan. 8, 1989, at C3, col. I (arguing that one degree warming indicated over last one hundred
years is due to artificially warm cities growing up around their weather stations); see also Valentine, "Greenhouse" Only One Theory in D.C. Warm-up, Watchers Say, Wash. Post, Sept. 6, 1988, at
B1, col. 1 (explaining "heat-island effect"). In 1987, however, scientists probed the
permafrost of Alaska's North Slope, taking core samplings of the ice from deep within the
frozen soil and comparing their temperatures with that of samplings taken from the top.
Wolkomir, The Greenhouse Revolution, OCEAN, Apr. 1988, at 17. Their study revealed that the
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gas responsible for the greenhouse effect, while methane, nitrous
4
oxide, and chlorofluorocarbons also add significant contributions.
Known as "greenhouse gases," these substances accumulate in the
atmosphere as by-products of industry and agriculture, as well as
from natural sources, and allow the sun's warriing rays into the
Earth's atmosphere, but prevent excess heat from escaping.5
Scientists estimate that present levels of carbon dioxide are
twenty-five percent higher than they were in 1900, and scientists expect this phenomenon to continue. 6 By the years 2030-2060, the
amount of carbon dioxide in the atmosphere may double and the
resulting warming could boost the global mean temperature 1.5 to
4.5 degrees Celsius. 7 Because the Earth's temperature has not fluctuated more than one or two degrees Celsius in the past 10,000
years, 8 the rise in temperatures expected over the next fifty years
will exceed any climatic change experienced in human history. 9
This Comment discusses the scope and consequences of global
warming and examines the steps deemed necessary to curtail the
rate of warming and to mitigate the effects that are almost certain to
occur. Specifically, Part I discusses the scientific background necessary to understand the mechanics of the greenhouse effect.10 Part II
examines the three primary contributors to global warming: fossil
fuels, deforestation, and industrial and agricultural releases of effluents.'1 Part III addresses the major effects upon the Earth that may
permafrost has warmed four to seven degrees Farenheit in the past century. Id.; see also
Lemonick, Feeling the Heat, TME, Jan. 2, 1989, at 36, 37 (reporting that scientists conducting
similar research of Antarctic and Arctic ice found that carbon dioxide levels and global temperatures have risen and fallen in tandem, over tens of thousands of years).
4. The GlobalEnvironmental ProtectionAct of 1988: Joint Hearings on S. 2666 Before the Subcomm. on Hazardous Wastes and Toxic Substances and the Subcomm. on Environmental Protectionof the
Senate Comm. on Environment and Public Works, 100th Cong., 2d Sess. 286 (1988) [hereinafter
Hearings on S. 2666] (statement of Meyer Steinberg, Brookhaven Nat'l Laboratory). Attempts
to regulate polyatomic compounds-such as nitrous oxide and chlorofluorocarbons-may
prove less onerous on society because they are not primary components of energy generation.
Id.
5. Titus & Seidel, supra note 3, at 8.
6. Tangley, Preparingfor Climate Change, 38 BIoScIENcE, Jan. 1988, at 14.
7. See id. at 14-15 (stating that by mid-21st century, global mean temperatures could
rise by two to five degrees Celsius); see also Speth, Global Energy Futures and the Carbon Dioxide
Problem, 9 ENvrL. AFF. 1, 1-2 (1980) (noting that temperature rise could be as high as seven to
ten degrees Celsius in north polar region during winter).
8. United Nations EnvironmentalProgramme, The ChangingAtmosphere, UNEP Env't Brief No.
1, at 2 (1986).
9. Id.
10. See infra notes 16-37 and accompanying text (discussing scientific observation of carbon dioxide levels in atmosphere and effects on global temperatures).
11. See infra notes 38-85 and accompanying text (discussing incremental contribution to
warming by various activities and chemical compounds).
1989]
TURNING DOWN THE HEAT
205
accompany global warming.' 2 Part IV outlines two United States
statutes, the National Environmental Policy Act (NEPA) and the
Clean Air Act (CAA), which have promising potential as tools for
addressing global warming.' 3 Part V analyzes NEPA and the CAA
and also explores proposed legislation concerned with the manner
in which the United States should cope with climatic changes.' 4
This Comment concludes that legislation aimed specifically at the
problem of global warming is necessary. 15
I.
SCIENTIFIC BACKGROUND
Carbon dioxide is a naturally occurring phenomenon in the atmosphere, the product of soil bacteria, 16 respiring plants, 7 and volcanoes.18 Atmospheric levels of carbon dioxide help regulate the
Earth's temperature.19 Radiant energy in the form of sunlight enters the atmosphere, reflects off the Earth's surface and is then emitted into space. 20 Carbon dioxide and other greenhouse gases,
however, absorb some of the energy. 2 1 This absorption results in a
warming of the Earth's atmosphere, which is commonly referred to
22
as the greenhouse effect.
Scientists first hypothesized a rise in the carbon dioxide content
of the atmosphere as a result of industrialization almost a century
ago. 23 Over the next half century, most scientists paid little heed to
12. See infra notes 86-118 and accompanying text (describing potential effects of global
warming on climate, oceans, food production, and habitats).
13. See infra notes 119-51 and accompanying text (describing provisions of National Environmental Policy Act (NEPA) and Clean Air Act (CAA) which might assist effort to decrease
warming).
14. See infra notes 152-243 and accompanying text (analyzing methods by which current
and proposed legislation could assist effort to reduce harmful emissions).
15. See infra note 245 and accompanying text (calling for immediate legislation to halt
global warming).
16. See I. MINTZER, A MATTER OF DEGREES: THE POTENTIAL FOR CONTROLLING THE
GREENHOUSE EFFECT 22 (Apr. 1987) (Research Report No. 5 of the World Resources Institute) (describing effects of increased ambient temperatures on soil bacteria).
17. H. BEEVERS, RESPIRATORY METABOLISM IN PLANTS 1 (1961) (describing normal process of respiration as oxidative breakdown of organic substances present in plant cells).
18. G. MACDONALD, VOLCANOES 51 (1972) (noting that carbon dioxide levels are at least
equal to water vapor levels in emitted gases); F. BULLARD, VOLCANOES OF THE EARTH 516-18
(1984) (discussing relationship between volcanic dust, volcanic carbon dioxide emissions, and
global temperature).
19. Titus & Seidel, supra note 3, at 8.
20. Id.
21. Id.
22. Id. For an excellent, in-depth description of this phenomenon; see MacDonald, supra
note 3, at 427-29 (describing greenhouse effect as when Earth's atmosphere allows shorterwavelength radiation in, but does not allow longer-wavelength radiation out). The greenhouse gases that occur naturally in the atmosphere make the Earth habitable-approximately
35 degrees Celsius warmer than it might otherwise be. Id. at 426.
23. See Arrhenius, On the Influence of Carbonic Acid in the Air upon the Temperature of the
Ground, 41 LONDON, EDINBURGH, AND DUBLIN PHIL. MAG. &J. OF SCI. 237 (1896) (determining
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this hypothesis until concrete evidence established a rise in atmospheric carbon dioxide levels. 24 Research showed that the pre-industrial concentration of carbon dioxide was between 280 and 295
parts per million (ppm). 25 In 1958, researchers made the first scientific measurements of carbon dioxide, approximating the levels at
315 ppm. 26 These levels have risen steadily every year to approximately 380 ppm in 1988.27 Recent reports show a surge in the rate
of increase of carbon dioxide levels between mid-1987 and May
1989.28
Nevertheless, predicting future carbon dioxide levels is difficult. 29
Major uncertainties exist concerning the rate at which the oceans
absorb excess atmospheric levels of carbon dioxide 3 0 -the oceans
act as storage units for carbon dioxide3 '-and the manner in which
effect of carbon dioxide upon temperature of Earth's surface); see also MacDonald, supra note
3, at 427 (recognizing that small variations in atmospheric composition could cause climatic
changes).
24. See MacDonald, supra note 3, at 427 (ekplaining that in 1938, G. Callendar demonstrated that man's use of fossil fuels could change climate of Earth); Weisskopf, "Greenhouse
Effect" Fueling Policy Makers, Wash. Post, Aug. 15, 1988, at Al, col. 1 (noting that scientific
study undertaken in 1957 at Scripps Institute of Oceanography in San Diego showed that half
of carbon dioxide emitted by machinery would remain in atmosphere); Ramanathan, The
Greenhouse Theory of Climate Change: A Test by an Inadvertent Global Experiment, SCIENCE, Apr. 15,
1988, at 293, 294 (commenting that scientists use theory of climate change involving carbon
dioxide fluctuations for understanding climate variations of past epochs).
25.
MacDonald, supra note 3, at 433. But cf. GAIA, AN ATLAS OF PLANET MANAGEMENT 117
(N. Myers ed. 1984) (placing carbon dioxide levels in 1850 at 265 ppm). The analysis of
samples of air trapped in glaciers allows scientists to confirm their calculations of pre-industrial carbon dioxide levels. MacDonald, supra note 3, at 433.
26. MacDonald, supra note 3, at 432. Continuous measurements of carbon dioxide began in 1958 at an observatory in Mauna Loa, Hawaii. Id. at 430; see also Keelling, Bacastow &
Wharf, Measurements of the Concentration of Carbon Dioxide at Mauna Loa Observatory, Hawaii, in
CARBON DIOXIDE REvIEW: 1982, at 377 (W. Clark ed. 1982) (describing Mauna Loa as one of
most favorable locations for taking measurements).
27. S. 2666, 100th Cong., 2d Sess. § 115 (1988).
28. See Peterson, Experts, OMB Spar on Global Warming: "Greenhouse Effect" May Be Accelerat-
ing, Scientists Tell Hearing,Wash. Post, May 9, 1989, at A 1, col. 3 (stating that research station at
Mauna Loa, Hawaii has documented increase in carbon dioxide levels of approximately 1.5
ppm per year since 1957, but that new rate of increase is approximately 2.5 ppm per year).
29. MacDonald, supra note 3, at 435. Although increasingly detailed data is available on
past climate conditions, this information provides a poor analogue to future climatic changes.
Id. at 436; see also Wolkomir, supra note 3, at 20 (warning that potentially abrupt climatic
changes cannot be modeled by computer).
30. MacDonald, supra note 3, at 426. The atmospheric level of carbon dioxide increases
at a rate that accounts for only about half of the total carbon dioxide emitted annually. CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, 98TH CONG., 2D SESS., CARBON DioxIDE, THE GREENHOUSE EFFECT, AND CLIMATE: A PRIMER 5 (Comm. Print 1984) [hereinafter
PRIMER]. Many climatologists believe that the oceans may be responsible for mitigating much
of the greenhouse effect that would have been otherwise caused thus far. See Wolkomir, supra
note 3, at 59 (suggesting that warmer ocean temperatures cause oceanic plankton to release
more dimethyl sulfide, which seeds clouds, thereby shielding Earth from solar radiation, and
thus lowering Earth's temperature).
31. PRIMER, supra note 30, at 5. Scientists believe that the oceans and biospheres (plant
life) act as reservoirs for 50% of annual carbon dioxide emissions. Id.; see MacDonald, supra
1989]
TURNING DOWN THE HEAT
207
clouds influence temperature. 32 The projections of future carbon
dioxide emission levels are also uncertain.3 3 Furthermore, the rate
of accumulation of other greenhouse gases in the atmosphere is rising to the equivalent of an additional increase in carbon dioxide
levels of forty to fifty ppm. 3 4 Experts believe that as early as the year
2040, the combined effect of these gases will be equivalent to a
doubling of the pre-industrial carbon dioxide concentrations. 35 Relying on complex global climate models, experts predict that the
doubling of carbon dioxide levels will cause an increase in global
mean temperatures of approximately 1.5 to 4.5 degrees Celsius. 36
Indeed, the Earth's average temperature has already increased 0.7
degrees Celsius within the last century. 3 7
II.
THE CAUSES
Experts have identified two primary causes of global warming:
the burning of fossil fuels and deforestation.3 8 Fossil fuel consumption impacts every facet of modern industrial society and is occurring at unprecedented rates worldwide as populations soar.3 9
Deforestation is also occurring at alarming rates as developing
countries level forests for grazing and farm land. 40
note 3, at 426 (explaining that oceans act as gigantic reservoir for carbon dioxide, thus maintaining stable climate).
32. See Ramanathan, Barkstrom & Harrison, Climateand the Earth'sRadiation Budget, PHYSIcs TODAY, May 1989, at 22, 32 (explaining that NASA multisatellite experiment shows that
clouds cool Earth more than they heat it); Hilts & Sawyer, The Cold Truth About Cloudy Weather,
Wash. Post, Jan. 16, 1989, at A3, col. 4 (describing certain researchers' theories that find
increased cloudiness caused by greenhouse effect prevents more heat from reaching surface
of Earth, thus compensating for warming caused by greenhouse effect).
33. See PRIMER, supra note 30, at 8-9 (outlining possible factors affecting future fossil fuel
use); I. MINTZER, supra note 16, at 15-24 (utilizing four scenarios to predict future concentrations of atmospheric carbon dioxide). See generallyJiger,Developing Policies, supra note 2, at 6-7
(discussing uncertainties in forecasting global climate change).
34. Jiger, Climatic Change: Floating New Evidence in the CO, Debate, ENVIRONMENT, Sept.
1986, at 6, 8 [hereinafterJiger, Climatic Change].
35. Id.
36. NATIONAL RES. COUNCIL, CARBON DIOXIDE AND CLIMATE: A SECOND ASSESSMENT 17
(1982) (finding likely rise in global temperature of three degrees Celsius with plus or minus
1.5 degree error).
37. Conference Statement of the International Conference on the Changing Atmosphere: Implications for Global Security, June 27-30, 1988, at 3 [hereinafter Changing Atmosphere] (statement of international meeting sponsored by Government of Canada in Toronto);
seeJ~ger,Climatic Change, supra note 34, at 9 (observing that there has been general warming
trend in Earth's temperature over past 80 years); see also MacDonald, supra note 3, at 427
(noting that Earth's temperature is warming in accordance with theoretical expectations).
38. See Begley, The Endless Summer?, NEWSWEEK, July 11, 1988, at 18, 19 (asserting that
man has destroyed delicate balance created by nature).
39. See id. at 20 (noting that economists forecast doubling of fossil fuel emissions over
next 40 years).
40. See Action at the Grassroots:FightingPoverty and EnvironmentalDecline, WORLDWATCH, Jan.
1989, 1, 35-36 [hereinafter Environmental Decline] (expressing view that possibility of treeless
Amazon is increasing); Outerbridge, Breathing New Life Into "World's Lungs, " Wash. Times,
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A.
[Vol. 39:203
Fossil Fuels
Approximately eighty percent of the world's energy comes from
fossil fuels. 41 Fossil fuels include coal, oil, natural gas, and biomass
(wood). Moreover, fossil fuels are a limited resource; some scientists estimate that within the next 100 to 150 years world supplies of
certain fossil fuels will be depleted. 42 Fossil fuel combustion, which
currently amounts to approximately five billion tons of carbon dioxide per year, is the primary source of the greenhouse effect. 45 Estimates from 1987 show that fossil fuel producers processed the
equivalent of 135 million barrels of oil a day. 44 Moreover, global
use of fossil fuel is growing at a rate of approximately four percent
annually. 4 5 With respect to its contribution to the greenhouse effect, coal is the fossil fuel that rates the highest in carbon dioxide
emissions, accounting for thirty-two percent of worldwide fossil fuel
use. 4 6 Oil, accounting for forty-five percent of world totals, rates
second, 4 7 while natural gas, totaling twenty-three percent, is third. 48
B.
Deforestation
The elevated levels of carbon dioxide are not solely attributed to
the burning of fossil fuels. 49 The destruction of tropical forests for
wood and conversion to farm land accounts for a loss of approximately 27.2 million acres of tropical forests each year. 50 Loss of
Mar. 14, 1989, at El, col. 4 (explaining that 40% of world's rain forests have been leveled and
that in 20 years, at present rates, most tropical forests could vanish).
41. J 5ger, Climatic Change, supra note 34, at 7.
42. See Weiss, A Resource Management Approach to Carbon Dioxide Duringthe Century of Transilion, 10 DEN.J. OF INT'L L. & POL'Y 487, 489 (1981) (noting that alternate fuel sources will
eventually replace fossil fuels and that carbon dioxide buildup is therefore short-term
phenomenon).
43. J~iger, Developing Policies, supra note 2, at 22. Fossil fuel combustion is also responsible for the formation of other greenhouse gases such as methane, nitrous oxide, and tropospheric ozone. Greenhouse Effect and Global Climate Change: Hearings Before the Senate Comm. on
Energy and Natural Resources, 100th Cong., 1st Sess. 186 (1987) (statement of Dr. Gordon
MacDonald).
44. Wald, Fighting the Greenhouse Effect, N.Y. Times, Aug. 28, 1988, § 3, at I, col. 2.
45. J. GRIBBON, THE HOLE IN THE SKY 93 (1988).
46. Wald, supra note 44, at 8, col. 2. The most damaging of fuels is also unfortunately
the most abundant. The United States still has enough coal to last for three centuries, but
only enough natural gas resources for another few decades. Id.
47. Id.
48. Id.
49. See infra notes 50-58 and accompanying text (discussing contribution of deforestation
to global warming).
50. Adler, Stretched to the Limit, NEWSWEEK, July 11, 1988, at 23, 24. In 1984, the Congressional Office of Technology Assessment (OTA) issued a report stating that deforestation
in tropical areas was occurring at an alarming rate and that if those trends continued, much of
the Earth's tropical rainforests would be destroyed by the turn of the century. Sangeorge,
Tropical Forests Face Destruction, UPI NEWS WIRE DIsPATCH, Mar. 23, 1984. The report estimates that at current rates "nine tropical countries would eliminate practically all of their
1989]
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209
these forests accounts for approximately one-fifth of the annual excess carbon dioxide in the atmosphere. 5 1
Deforestation contributes to global warming in two ways. First,
the large scale burning of forests-as a method of clearing land52
releases large quantities of carbon dioxide into the atmosphere.
For example, in the Amazon jungle, cattle ranchers and highway developers employ the slash-and-burn method to increase grazing
land and prepare for development.5" The burning of forests in the
Amazon occurs in such magnitude that scientists have estimated it
may be the source of more than one-tenth of total man-made carbon
54
dioxide emissions.
Second, because trees absorb carbon dioxide through photosynthesis, large scale deforestation reduces one of the known natural
carbon dioxide storage units at a time when such a reservoir is most
needed. 5 5 Furthermore, recent research suggests that as global
warming progresses, abrupt temperature changes could destroy forclosed forests within the next 30 years and another 13 countries would exhaust their forests
within 55 years." Id.
Some innovative ideas to curtail deforestation include: paying developing nations-where
most tropical forests are located-rent to preserve their forests, see Breck, Rain Forestsfor
Rent?, NEWSWEEK, Dec. 5, 1988, at 12 (contending that developed nations must provide incentives to halt destruction of tropical forests); swapping debts of developing nations for
rainforest preservation, see EDF Spurs Passage of Innovative "Debt for Nature" Legislation, EDF
LETrER, Apr. 1, 1988, at 1 (discussing legislation that requires United States Treasury Department and United States members of International Monetary Fund to promote "debt for conservation" swaps); and a utility company's reforestation of over 385 square miles in
Guatemala to counterbalance additions to carbon dioxide concentrations that the utility company's new coal-burning power plant in Connecticut will cause. Shabecoff, U.S. Utility Planting
52 Million Trees, N.Y. Times, Oct. 12, 1988, at A14, col. 3. In order to offset the total amount
of carbon dioxide emitted into the atmosphere annually, however, experts estimate that three
billion acres of trees-an area larger than the United States-would need to be reforested. Id.
at col. 5.
51. W. MOOMAW, PROPOSED NEAR-TERM CONGRESSIONAL OPTIONS FOR RESPONDING TO
GLOBAL CLIMATE CHANGE 16 (1988) [hereinafter PROPOSED OPTIONS] (proposing that reevaluation of foreign aid programs, which would minimize forest destruction and encourage reforestation, is necessary).
52. See Environmental Decline, supra note 40, at 35-36 (noting that in 1987, Amazon fires
added 518 million tons of carbon dioxide to the atmosphere, almost one-tenth of worldwide
totals for fossil fuel combustion).
53. See Margolis, Thousands ofAmazon Acres Burning: ClearingPractices Threaten Western Hemisphere's Air Quality, Wash. Post, Sept. 8, 1988, at A31, col. 2 (reporting that up to 5000 fires
per day are set between July and October each year); see also Stowe, United States ForeignPolicy
and the Conservation of Natural Resources: The Case of Tropical Deforestation, 27 NAT. RESOURCES J.
55, 59 (1987) (explaining that clearing tropical forest land for farming is productive only in
short term and ultimately causes loss of life and property due to increased flooding).
54. Simons, Man-Made Amazon Fires Tied to Global Warming, N.Y. Times, Aug. 12, 1988, at
Al, col. 6. Seventy-seven thousand square miles of Brazil's Amazon rain forest were destroyed in 1987 alone, an area equivalent to one and one-half times the size of New York state.
Id. at A6, col. 1. The annual queimadas (burnings) in 1987 released over 500 million tons of
carbon into the atmosphere. Id. at A6, col. 2. In addition, the fires generate millions of tons
of methane and nitrous oxides, two other greenhouse gases. Shabecoff, Suddenly, the World
Itself is a World Issue, N.Y. Times, Dec. 25, 1988, § 4, at 2, col. 2.
55. See Stowe, supra note 53, at 59-60.
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ests at the middle and high latitudes. 5 6 The subsequent decay of
these forests would release great amounts of carbon dioxide and
methane into the atmosphere and thereby exacerbate the warming
trend.5 7 Slowing deforestation, however, would preserve "storage
units" for carbon dioxide, while lessening the amount of fossil.fuel
58
needed to be reduced.
C. Other Greenhouse Gases
In amounts comparable to carbon dioxide, other gases are also
currently adding to the greenhouse effect. 59 Although scientists
have identified at least a dozen trace greenhouse gases in the atmosphere, 60 the most significant gases are chlorofluorocarbons, methane, nitrous oxide, and tropospheric ozone.6 1 These gases are more
efficient than carbon dioxide at absorbing and trapping heat.6 2 As
their atmospheric levels continue to rise, scientists stress that an understanding of the effect of non-carbon dioxide greenhouse gases
on the atmosphere is crucial in order to predict accurately long-term
3
climate trends. 6
1.
Chlorofluorocarbons
Chlorofluorocarbons (CFCs) are the primary man-made compounds responsible for depleting the Earth's ozone layer.6 4 The
56. Some Forests, Vegetation Affected By Warming Will Release More Gases, Biologist Testifies, [19
Current Developments] Env't Rep. (BNA) 1120 (Sept. 30, 1988).
57. Id.
58. SeeJ~ger,Developing Policies, supra note 2, at 22-24 (explaining that current contributions to carbon dioxide concentrations from deforestation add at least one gigaton to carbon
dioxide concentrations annually).
59. Ramanathan, Callis, Cess, Hansen, Isaksen, Kuhn, Lacis, Luther, Mahlman, Reck, &
Schlesinger, Climate-Chemical Interactionsand Effects of ChangingAtmospheric Trace Gases, 25 REv.
GEOPHYSICS 1441, 1442 (1987) [hereinafter Climate-ChemicalInteractions] (noting that although
carbon dioxide has long been recognized as cause of greenhouse effect, new compounds are
constantly being added to list).
60.
S. SCHNEIDER, THE GREENHOUSE EFFECT: WHAT WE CAN OR SHOULD Do ABOUT IT 21
(1987) (presented at the First North American Conference on Preparing for Climate Change:
A Cooperative Approach (Washington, D.C., Oct. 27-29, 1987)) (remarking that greenhouse
gases pose great threat of irreversible change).
61. D. ABRAHAMSON, GLOBAL WARMING AND ENERGY POLICY 1 (1988) (based on presentation at Workshop on the Global Commons (Boulder, Colo. Apr. 7-10, 1988)) (observing that
approximately 20 other greenhouse gases have been identified),
62. j5ger, Climatic Change, supra note 34, at 8; see Ramanathan, supra note 24, at 294 (emphasizing that one molecule of either CFC- II or CFC-12 has same greenhouse effect as addition of 10,000 molecules of carbon dioxide to atmosphere); see also infra note 72 and
accompanying text (describing CFC effect on thermal radiation).
63. Climate-ChemicalInteractions,supra note 59, at 1442; see also Lave, The Greenhouse Effect:
What Government Actions Are Needed?, 7J. POL'Y ANALYSIS & MGMT. 460, 462 (1988) (asserting
that feedback mechanisms for other greenhouse gases are not well understood).
64. CFCs are used as refrigerants, blvents, and propellants for spray cans. Bruce, Alan's
Impact on Earth's Atmosphere, in I EFFECTS OF CHANGES IN STRATOSPHERIC OZONE AND GLOBAL
CLIMATE 44
(J. Titus
ed. 1986). Scientists from the British Antarctic Survey discovered a
1989]
TURNING DOWN THE HEAT
ozone layer is located between ten and thirty miles above the Earth's
surface.6 5 Because it absorbs most of the ultraviolet radiation that
comes from the sun,6 6 this layer is vital to the continued existence of
all life on Earth.6 7 Reduced ozone levels accelerate the warming of
the Earth's climate.6 8 Specifically, lower ozone concentrations allow
increased levels of ultraviolet radiation in the form of heat to reach
the Earth's surface, where the heat becomes trapped by accumulating gases. 6 9 Furthermore, CFCs are also extremely potent greenhouse gases. 70 Aside from other pressing reasons to eliminate their
use,7 1 CFCs trap over ten thousand times more thermal radiation
72
than does carbon dioxide.
2.
Tropospheric ozone
Tropospheric ozone refers to ozone created in the lower atmosphere rather than high-altitude ozone. 7 3 This lower atmospheric
"hole" in the ozone layer over Antarctica in May 1985. Rowland, A Threat to Earth's Protective
Shield, EPAJ., Dec. 1986, at 4. This surprising discovery, coupled with subsequent research,
confirmed the "Rowland-Molina hypothesis" published in 1973 by chemists F. Sherwood
Rowland and Mario J. Molina. Hearings on S. 2666, supra note 4, at 43 (testimony of Prof. F.
Sherwood Rowland). The Rowland-Molina hypothesis states that man-made CFCs have damaged the ozone layer, which is the layer that acts as a filter for ultraviolet radiation emitted
from the sun. See Molina & Rowland, StratosphericSink for Chlorofluoromethanes: Chlorine Atom
Catalyzed Destructionof Ozone, 249 NATURE 810 (1974) (theorizing that chlorine atoms released
from CFCs migrate to stratosphere where they destroy ozone molecules).
65. Lemonick, supra note 3, at 42.
66. Clarke, The Ozone Layer, UNEP/GEMS Env't Libr. No. 2, at 8 (1987).
67. Id.; see also M. OPPENHEIMER, THE ENVIRONMENTAL DEFENSE FUND, GLOBAL LESSONS
FROM THE OZONE HOLE 11-12 (1988) (discussing impact of increased ultraviolet radiation on
southern hemisphere marine food web); Williams, A HistoricalBackground on Chlorofluorocarbon
Ozone Depletion Theory and Its Legal Implications, in TRANSBOUNDARY AIR POLLUTION 268 (C.
Flinterman ed. 1986) (noting that because ozone layer acts as shield against ultraviolet radiation, its depletion may have detrimental effects on human health and environment).
68. Clarke, supra note 66, at 10 (noting that less ultraviolet radiation will be absorbed if
concentration of ozone in stratosphere decreases).
69. Id.
70. IncreasingLevels of ChlorofluorocarbonsIs [Sic] Changing Earth'sAtmosphere, NASA Says, [17
Current Developments] Env't Rep. (BNA) 204-05 (June 20, 1986).
71. See Gleick, Treaty Powerless to Stem a Growing Loss of Ozone, N.Y. Times, Mar. 20, 1988, at
Al, col. I (observing that ultraviolet radiation at short wavelengths damages genetic material
of cells thus depressing immune system and increasing development of cancerous cells); see
also id. at A30, col. 4 (finding that sunlight at short wavelengths may be fatal to microorganisms such as phytoplankton which are first link in marine food chain).
In April 1989, scientists reported that human use of CFCs had caused a detectable increase
in the amount of ultraviolet radiation reaching the Earth's surface; the report marked the first
time that an increase in ultraviolet radiation was attributable to human use of CFCs. See Sawyer, Rise in Ultraviolet Radiation Tied to Antarctic Ozone Hole: Higher "Biologically Relevant" Levels
Reaching Earth, Wash. Post, Apr. 6, 1989, at A3, col. 4 (noting that report is first indication of
long predicted harmful effect caused by ozone shield damage).
72. Revkin, Endless Summer: Living with the Greenhouse Effect, DISCOVER, Oct. 1988, at 50,
59-60.
73. UNEP/GEMS, THE GREENHOUSE EFFECT 19-20 (1986). The two "types" of ozone
are chemically identical; the crucial difference results from their location in the atmosphere.
Id.
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ozone is commonly referred to as smog. 74 Smog is a by-product of
fossil fuel combustion that forms when nitrogen oxide from exhaust
and sunlight interact. 7 5 Ground-based ozone levels in the United
States have risen sharply throughout the last decade. Between 1987
76
and 1988 alone, the levels rose fourteen percent.
3.
Methane
Methane is rapidly increasing in the atmosphere 77 and comes
from two primary sources. First, methane is the product of incomplete fossil fuel combustion. 78 Second, methane is the bacterial decomposition of organic matter. 79 Moreover, the decreasing ability
of soil microbes to remove methane from the air because of the
growing use of nitrogen-based fertilizers contributes to the greenhouse effect.8 0 Concentrations of methane in the atmosphere
currently add to the greenhouse effect by approximately twenty
percent. 81
4. Nitrous oxide
The burning of fossil fuels is responsible for much of the increased levels of atmospheric nitrous oxide.8 2 In addition, the widespread use of nitrogen-based fertilizers emits large quantities of
nitrous oxide into the atmosphere.8 3 Because clear cutting of trees
releases nitrous oxide from the soil, deforestation may also contribute to the level of nitrous oxide.8 4 Although it is difficult to predict
74. See Clarke, supra note 66, at 9 (explaining that tropospheric ozone is extremely dangerous to respiratory system).
75. Id. at 9-10.
76. See Weisskopf, 1988 Ozone Pollution Was Worst of Decade: Medical Experts Warn of Health
Dangers, Wash. Post, Mar. 1, 1989, at A3, col. 4 (explaining that in 1988, ground-based ozone
polluted 28 previously clean areas for first time in years, even reaching once pristine national
parks).
77. See Wolkomir, supra note 3, at 18 (observing that atmospheric concentrations of
methane currently increase at rate three times that of carbon dioxide); see also Revkin, supra
note 72, at 54 (stating that methane concentrations grow as human populations rise).
78. See Mintzer, Living in a Warmer World: Challengesfor Policy Analysis and Management 7 J.
POL'y ANALYSIS & MGMT. 445, 450 (1988) [hereinafter Living in a Warmer World] (noting that
automobile exhaust is responsible for large quantities of methane).
79. Einhorn & Charo, Carbon Dioxide and the Greenhouse Effect: Possibilitiesfor Legislative Action, 11 COLuM. J. ENrrL. L. 495, 501 (1986); see also Lemonick, supra note 3, at 38 (observing
that methane generated from garbage landfills can be tapped and used as fuel to heat homes).
80. See Booth, Nitrogen FertilizersMay Be Adding To "Greenhouse Effect", Wash. Post, Sept.
28, 1989, at A8, col. 1 (finding that bacteria take up far less methane in soil treated with
nitrogen fertilizer than do microbes in soil that has not been treated).
81. Ramirez, A Warming World: What it Will Mean, FORTUNE, July 4, 1988, at 102, 104.
82. See I. MINTZER, supra note 16, at 10 (stating that coal and fuel oil are primarily responsible for fossil fuel contributions of nitrous oxide).
83. Einhorn & Charo, supra note 79, at 501.
84. Bowden & Bormann, Transport and Loss of Nitrous Oxide in Soil Water After Forest ClearCutting, 233 SCIENCE 867 (1986).
1989]
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213
future levels of nitrous oxide in the atmosphere, current research
shows that nitrous oxide concentrations are increasing at a growth
85
rate of 0.290 per year.
III.
EFFECTS OF GLOBAL WARMING
Although many of the effects of global warming will vary in different parts of the world, most consequences of a warmer Earth will be
universal.8 6 The rise in global mean temperatures could cause the
world's oceans to become warmer and to expand.8 7 For instance,
warmer atmospheric and oceanic temperatures could cause polar
sea ice and glacial packs to melt, resulting in a rise in sea levels.18
Rising sea levels could cause low-lying land masses-many of which
are highly populated-to disappear beneath the sea.8 9 In addition,
global warming could shift rainfall patterns, causing massive crop
failure as valuable farmland turns to dust. 90 Thus, certain animal
and plant species face potential extinction as global warming and its
effects alter their habitats. 9 1
85. MacDonald, supra note 3, at 435.
86. Living in a Warmer World, supra note 78, at 447 (explaining that greenhouse effect will
not be uniform, but that increased warming at poles will reduce gradient between equator and
high-altitude regions, affecting entire global climate). Although scientists speculate that some
nations might benefit from the effects of a warmer climate-for example, the climate conditions that currently make the mid-region of the United States the world's "bread basket"
could shift northward to southern Canada-they also caution'that the pace of change could be
disruptively rapid. See Lemonick, supra note 3, at 36-37 (stating that predictions of specific
weather patterns are highly uncertain).
87. Titus, Rising Sea Levels: The Impact They Pose, EPAJ., Dec. 1986, at 17, 18. An EPA
study on the greenhouse effect and sea level rise predicts that thermal expansion could add 30
centimeters to the sea level in the next century. OFFICE OF POL'Y, PLANNING & EVALUATION,
U.S. ENVTL., GREENHOUSE EFFECT, SEA LEVEL AND COASTAL WETLANDS 7 (1988) [hereinafter
COASTAL WETLANDS].
88. Wolkomir, supra note 3, at 18. Research shows that during some previous epochswhen the earth's average temperature was only 1.5 degrees Celsius more than it is today-sea
levels were 20 feet higher. Id.; see also Titus, supra note 87, at 18 (explaining how warmer
oceans result in higher sea levels).
89. See Living in a Warmer World, supra note 78, at 446 (predicting that in Egypt, for example, area inhabitated by eight million people would be flooded if one-meter rise in sea level
occurred).
90. See Ramirez, supra note 81, at 107 (noting that climate of midwestern crop-growing
region of United States could experience temperature increases and rainfall decreases comparable to those of "Dust Bowl" in 1930s). For example, Harold W. Bernard uses the 1930s
drought as an analogue to explore the changes expected between 2010 and 2020; during this
time, climatologists predict a one degree Farenheit rise in the Earth's temperature will occur.
H. BERNARD, THE GREENHOUSE EFFECT 32-50 (1980). During the 1930s, the average global
mean temperature was approximately one degree Farenheit higher than that of recent decades. Id. at 33. Inconsistent with the temperature changes expected from increased concentrations of carbon dioxide, however, are the relatively stable temperatures recorded between
the late 1930s and the mid-1970s. MacDonald, supra note 3, at 439.
91. See OFFICE OF POL'Y, PLANNING, AND EVALUATION, OFFICE OF RESEARCH AND DEV.,
EPA, THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES, DRAFT
REPORT TO CONGRESS (EXECUTIVE SUMMARY) 13 (1988) [hereinafter REPORT TO CONGRESS]
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Climate Change
The most direct consequence of global warming would be its impact on the Earth's climate. 92 Climatic changes would cause
weather patterns to shift. 93 In northern latitudes, winters could become shorter and wetter, while summers could become longer and
drier.9 4 Subtropical regions may become drier than they are at present, and tropical areas may become increasingly wetter and hotter. 95
Because most forms of agriculture are sensitive to variations in climate, 9 6 major, but as yet unpredictable, consequences for agriculture may result. 9 7
B.
Holding Back the Sea
One of the most far-reaching of the probable consequences of the
greenhouse effect is the rise in sea levels that would follow polar
glacial melting.98 At a conference held in Villach, Austria, the
(contending that because historic climate changes brought about extinction of many species,
it is reasonable to believe greenhouse effect will have similar impact).
92. Jfiger, Developing Polices,supra note 2, at 1 (explaining that increased concentrations of
carbon dioxide and other gases will lead to global warming and consequent climate changes).
Climatologists are already attributing certain weather pattern shifts to the greenhouse effect.
See Wolkomir, supra note 3, at 17 (noting that Australia's normal summer rain band has
pushed northward and that New Zealand's annual precipitation has increased by 30 to 40%7
since early 1900s).
93. See Lemonick, supra note 3, at 37 (explaining that Canada will gain U.S. Midwest's
agricultural advantages and Siberia will be warmer); Living in a Warmer World, supra note 78, at
447 (noting that as ocean currents shift, climates of some countries including Iceland and
Great Britain will cool while others warm). For a discussion concerning the difficulties of
predicting weather, see Ramirez, supra note 81, at 106.
94. See Jiger,Developing Policies, supra note 2, at 7-18 (describing regional scenarios for
climate change).
95. Id.
96. See UNITED NATIONS ENVIRONMENT PROGRAMME, INTERNATIONAL INSTITUTE FoR APPLIED SYSTEMS ANALYSIS, CLIMATE IMPACTS AND PUBLIC POLICY 14-20 (S. Chen & M. Parry ed.
1988) (describing various ways in which climate affects agricultural activities).
97. See infra notes 105-10 and accompanying text (discussing effects of climatic change
on food production).
98. See generally Titus, The Causes and Effects ofSea Level Rise, in UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, UNITED NATIONS ENVIRONMENT PROGRAMME, 1 EFFECTS OF
CHANGES IN STRATOSPHERIC OZONE AND GLOBAL CLIMATE 219 (J. Titus ed. 1986) [hereinafter
Causes and Effects] (providing overview of causes and effects of sea level rise). In October 1987,
a chunk of ice larger than the State of Delaware broke off Antarctica's Ross Ice Shelf.
Wolkomir, supra note 3, at 17. Moreover, many other instances of glacial "calving" have occurred over the past two years. Id. Warmer oceans could also cause hurricanes to develop
into superhurricanes-up to 50% more destructive than those occurring today. Id. Furthermore, scientific research indicates a correlation between rises in ocean temperatures, which
cause ocean currents to change, and variations in climate and weather patterns. See Hearings
on S. 2666, supra note 4, at 25 (statement of Dr. Carl Wunsch, Dep't of Earth, Atmospheric,
and Planetary Sciences, Mass. Inst. of Tech.) (explaining that "El Nin6" phenomenon appears
directly related to weather changes such as torrential rains on California coast, drought conditions in Africa, and variations in monsoon circulations). "El Nin6" is the name given to a
period during which unusually warm surface water prevails in the eastern tropical Pacific
Ocean, resulting in great loss of marine fish life. Weare, The Possible Link Between Net Surface
Heating and El Nini, SCIENCE, Sept. 2, 1983, at 947.
1989]
TURNING DOWN THE HEAT
World Meterological Organization (WMO), in conjunction with the
United Nations Environment Programme (UNEP), determined that
global sea levels will probably rise 50 to 200 centimeters before the
end of the twenty-first century. 9 9 A sea level rise of this magnitude
could cause low-lying land areas throughout the world to sink beneath the waves.' 0 0 For example, researchers estimate that with
only a one meter rise in sea level as much as fifteen percent of Egypt
and one-sixth of Bangladesh could be submerged.'01 The resulting
displacement of people would create potential refugee problems of
unprecedented dimensions.' 02 In addition, a rise in sea level could
inundate most coastal wetlands worldwide, thereby affecting nurseries for many commercially important fish.' 0 3 Finally, rising sea
levels could cause increased erosion and flooding, as well as higher
salinity and pollution in drinking water supplies.' 0 4
C.
Food Production
Although some evidence suggests that increased carbon dioxide
levels would be beneficial to plant life,' 05 the rise in temperature
99. See infra note 153 (explaining that workshops in Villach and Bellagio were first to
address physical impacts linked to global warming).
One scientist estimates that with every 12 inch rise in sea level, the sea moves inland 100
feet. Wolkomir, supra note 3, at 17. See also COASTAL WETLANDS, supra note 87, at 3 (observing
that global sea level has already risen an average of four to six inches over last century).
100. See Living in a Warmer World, supra note 78, at 446-47 (explaining effects of inundation
on low-lying coastal areas).
101. Id. The inundation of two-thirds of the land mass of Bangladesh during the summer
of 1988 serves to illustrate the complex interrelationship between the greenhouse effect and
the extensive use of natural resources. Weintraub, Deforestation Linked to Flood in Bangladesh,
Wash. Post, Sept. 10, 1988, at A12, col. 1 (explaining that half of forest cover in Himalayas
has been clearcut since 1950). Because deforestation adds to the amount of carbon dioxide in
the atmosphere, it helps raise global temperatures; as a result, it also can cause a rise in sea
levels. Deforestation, therefore, indirectly causes flooding of low-lying countries such as Bangladesh. Id. Furthermore, deforestation in the Himalayan Mountains is a direct cause of
flooding in Bangladesh; with no plant life to restrict runoff, water and silt rush freely to ocean
tributaries, which become clogged with eroded soils and thus flood. 1d.; see also supra notes 4958 and accompanying text (discussing deforestation).
102. See PROPOSED OPTIONS, supra note 51, at 5 (explaining that over one-third of world
population lives along coasts and that rise in sea level would adversely affect many of these
people); W. CLARKE, THE CARBON DIOXIDE QUESTION: A PERSPECTIVE FOR 1982, at 32 (1982)
(discussing effect of sea level rise on population).
103. See COASTAL WETLANDS, supra note 87, at 28. In July 1988, an EPA study found that
the greenhouse effect could cause as much as 80% of the nation's wetlands to be lost over the
next 100 years. Id. The study noted that wetlands in Louisiana are already converting to
open water at a rate of 50 square miles per year and that this development is partly attributable to rising sea levels. Id. at 19.
104. See generally Causes and Effects, supra note 98, at 219 (providing overview of causes and
effects of sea level rise). In addition, the costs for mitigating the effects of rising sea levels
would be staggering. See PROPOSED OvTIONS, supra note 51, at 5 (finding that estimated cost
for modest sized city to adapt to expected sea level rise is $1.5 billion).
105. See Seidel & Keys, Can We Delay a Greenhouse Warming, in 3 ENVT'L LAw: AIR POLLUTION 411 (M. Squillace ed. 1988) (explaining that increased carbon dioxide in atmosphere is
likely to enhance photosynthesis and decrease moisture requirements for plant growth);
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and decreased rainfall predicted for much of the world's current
06
grain-producing regions spell disaster for world food production. 1
One may argue that the drought that occurred in many parts of the
United States during the summer of 1988 foreshadows the effect of
higher temperatures and less rain. 0 7 Current United States Department of Agriculture figures indicate a thirty-one percent reduction
in United States grain harvests from 1987 to 1988.108 China, Canada, Argentina, and several other major grain producing countries
experienced similar reductions. 0 9 Department of Agriculture officials stated that if drought conditions persist during future summers, the results could be "catastrophic." ' " 0
D. Habitat Destruction
Forests and animal life may be unable to adapt to a rapid climate
change for numerous reasons." 1 I In the past, changes in climate occurred gradually, generally giving species time to adjust. 1 2 In contrast, an abrupt change in the climate would cause indirect effects
such as increased outbreaks of fire and changes in the population of
pest insects and microorganisms, resulting in damage to timber forests.1 1 3 Moreover, animal and plant species would have to contend
with increased heat and disruption of natural communities, as well
4
as changes in soil composition, rainfall patterns, and sea levels."
Cooper, Food and Fiber in a World of Increasing Carbon Dioxide, in CARBON DIOXIDE REVIEW:
1982, at 249 (W. Clark ed. 1982) (contending that doubling of carbon dioxide levels is as
likely to increase world food supplies as to decrease them); Wittwer, Commentary, in CARBON
DIOXIDE REVIEW: 1982, at 322 (W. Clark ed. 1982) (stating that increase in atmospheric carbon dioxide may be desirable for greater productivity in plant life).
106. See, Tangley, supra note 6, at 15 (explaining that most scientists agree increased plant
yields from higher carbon dioxide levels would be insufficient to counteract decreases from
carbon dioxide-induced climate changes). See generally Parry & Carter, Effects of Climatic Changes
on Agriculture and Forestry: An Overview, in 1 UNITED STATES EVIRONMENTAL PROTEcTION
AGENCY, UNITED NATIONS ENVIRONMENT PROGRAMME, EFFECTS OF CHANGES IN STRATOSPHERIC
OZONE AND GLOBAL CLIMATE 257 (J. Titus, ed. 1986) (considering impact of climate change
on plant life).
107. See Hearings on S. 2666, supra note 4, at 93 (statement ofJohn A. Schnittker) (contending that new policies must be considered to deal with climate change's threat to world food
supply).
108. Schneider, U.S. GrainHarvest Estimated at 31f, Below Last Year's, N.Y. Times, Aug. 12,
1988, at Al, col. 5.
109. Id.
110. '89 Drought Feared as a World Catastrophe, N.Y. Times, Oct. 2, 1988, at A33, col. I.
111. REPORT TO CONGRESS, supra note 91, at 8-9.
112. Id.
113. See generally Hearings on S. 2666, supra note 4, at 86-92 (statement of James C.
Overbay, Deputy Chief, Forest Serv., U.S. Dep't of Agriculture) (discussing drought from
1984 to 1988 and its relation to greenhouse effect and impact on wildlife). The summer of
1988 brought intense heat and drought to much of the United States; the drought contributed
to over 68,000 fires, burning more than four million acres of land. Id. at 1 (statement of Sen.
Baucus).
114. Tangley, supra note 6, at 17-18.
1989]
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217
Animal life, increasingly vulnerable to extinction because of human
development, would be even more susceptible to the effects of climatic stress.'1 5 Researchers fear that without rigorous management
policies, which would require complex new technology, widespread
1 16
species extinction may occur.
As stated, increased levels of carbon dioxide and other greenhouse gases may cause abrupt changes in worldwide climatic, social,
economic, and agricultural patterns."17 The problems are exceedingly complex, but solutions are available to slow the rate of change,
and thus allow society time to develop mechanisms that can minimize damage to the global environment." 8
IV.
LEGAL STANDARDS FOR ADDRESSING THE GREENHOUSE EFFECT
The United States is responsible for approximately twenty-five
percent of worldwide carbon dioxide emissions. 1 19 This fact, coupled with the knowledge that many nations look to the United States
for leadership and innovative technology, demonstrates that this nation must attack the problem domestically as well as internationally. 120 In addition, the progress that the United States makes on a
national level can serve as a model for future accomplishments
worldwide. Two environmental statutes, the National Environmental Policy Act (NEPA) 12 1 and the Clean Air Act (CAA), 1 22 offer valuable tools to promote understanding and create an opportunity for
advance planning to curtail climate changes as a result of the greenhouse effect.
115. See Revkin, supra note 72, at 59 (noting that as climate shifts cause wetlands to flood
and ice bridges to melt, animals may lose habitable places).
116. See Tangey, supra note 6, at 17 (contending that animals are extremely sensitive to
climate change); Titus & Seidel, supra note 3, at 15 (observing that although humans may be
able to adapt to changing climate, other species may not be as able to control their habitats).
117. See supra notes 86-116 and accompanying text (discussing far-reaching effects of
global warming).
118. See infra notes 121-51 and accompanying text (discussing National Environmental
Policy Act and Clean Air Act, which are designed to curb environmental pollution).
119. Hearings on S. 2666, supra note 4, at 364 (statement of Dr. Irving Mintzer, World
Resources Institute).
120. See UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF POLICY, PLANNING, AND EVALUATION, POLICY OPTIONS FOR STABILIZING GLOBAL CLIMATE 82 (D. Lashof& D.
Tirpak, ed. 1989) (executive summary of report to Congress) (noting that United States leadership has made important contributions to recent international environmental agreements
such as Montreal Protocol).
121. National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852, 853
(1970) (codified as amended at 42 U.S.C. §§ 4321-4347 (1982)).
122. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (codified as
amended at 42 U.S.C. §§ 7401-7626 (1982)).
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The National Environmental Policy Act
On the federal level,12 3 NEPA, one of the first environmental statutes, is probably the most all-encompassing of environmental
laws. 124 Through NEPA, Congress applies federal policy aimed at
protecting and preserving the environment. 125 NEPA also established the Council on Environmental Quality (CEQ),' 2 6 which issues
123. In addition to the federal NEPA statute, over half of the states have "little NEPA"
laws that require the preparation of environmental impact statements to cover projects that
do not fall within the reach of the federal impact statement process. Bear, The National Environmental Policy Act and the Council on Environmental Quality, in ENVIRONMENTAL IMPACT ASSESSMENT 2 (N. Robinson ed. 1987) [hereinafter NEPA and the CEQ]. Fourteen states and Puerto
Rico have legislated that their agencies must use the federal government's environmental impact review procedures. Those states are as follows: CAL. PUB. RES. CODE §§ 21000-21174
(West 1986); CONN. GEN. STAT. ANN. §§ 22a-1 to 22a-lh (1985); HAw. REV. STAT. §§ 343-1 to
343-8 (1983); IND. CODE ANN. §§ 13-1-10-1 to 13-1-10-8 (West 1987); MD. NAT. RES. CODE
ANN. §§ 1-301 to 1-305 (1987); MASS. GEN. LAws ANN. ch. 30, §§ 61 to 62H (West 1979);
MINN. STAT. ANN. §§ 116D.01 to 116D.07 (West 1987); MONT. CODE ANN. §§ 75-1-101 to 751-324 (1987); N.Y. ENvTL. CONSERV. LAW §§ 8-0101 to 8-0117 (McKinney 1984); N.C. GEN.
STAT. §§ I 13A-I to I 13A-10 (1988); P.R. LAws ANN. tit. 12 §§ 1121-1142 (1978); S.D. CODIFIED LAws ANN. §§ 34A-9-1 to 34A-9-12 (1986); VA. CODE ANN. §§ 3.1-18.8, 10.1-1200 to
10.1-1212 (1989); WASH. REV. CODE ANN. §§ 43.21C.010 to 43.21C.910 (1983); Wis. STAT.
ANN. § 1.11 (West 1988).
An additional 13 states use portions of environmental impact assessment (EIA) techniques.
Of the states with partial EIA procedures, four have adopted executive orders and nine have
statutes with limited scope: (a) The following states have executive orders and implementing
regulations: Michigan, see Michigan Executive Directive 1971-10, as superseded by Michigan
Executive Order 1973-9, as superseded by Michigan Order 1974-4 (May 1974); New Jersey, see
New Jersey Executive Order No. 53 (Oct. 15, 1973); Texas, see Policyfor the Environment (Mar.
7, 1972), published in Environmentfor Tomorrow: The Texas Response, Updated by the Environment
Policy--Guidelinesand ProceduresforProcessingEIS's (Nov. 1975); Utah, see State of Utah Executive Order (Aug. 27, 1974). (b) The states with statutes requiring a less rigorous EIA process
are: Arizona, see Game and Fish Commission Policy ofJuly 2, 1971, see also memorandum by the
Arizona Game and Fish Commission, Requirementsfor EnvironmentalImpact Statements Uune 9, 1971);
Delaware, see Coastal Zone Act, DEL. CODE ANN. tit. 7, §§ 7001-7003 (1974); Tidal Wetlands
Act, DEL. CODE ANN. tit. 7, §§ 6601-6620 (1974); Georgia, see GA. CODE ANN. §§ 95A 101 to
1308a (1978 & Supp. 1981); Kentucky, see Ky. REV. STAT. § 278.025 (Michie/Bobbs-Merrill
1981); Mississippi, see Coastal Wetlands Protection Law, Miss. CODE ANN. §§ 49-27-1 to 69
(1972); Nebraska, see Nebraska Dep't of Roads, Action Plan (1973), as revised by Nebraska
Dep't of Roads, Environmental Action Plan (1976); Nevada, see NEv. REV. STAT. § 321.840770 (1979); NewJersey, see Coastal Area Facility Review Act, NJ. STAT. ANN. §§ 13:19-1 to 21 (West 1979 & Supp. 1981); Wetlands Act of 1970, NJ. STAT. ANN. §§ 13:9A-1 to -10 (West
1979); NJ. STAT. ANN. § 12:5-3 (West 1979); Rhode Island, see Rhode Island Environmental
Act, R.I. GEN. LAws § 10 20-8(b) (1985). For a comprehensive analysis of "little NEPA" laws,
see Robinson, SEQRA "sSiblings: Precedentsfrom Little NEPA's in the Sister States, 46 ALB. L. REV.
1155 (1982).
124. 42 U.S.C. §§ 4321-4347 (1982). See generally Murchison, Does NEPA Matter?-An
Analysis of the HistoricalDevelopment and Contemporary Significance ofthe NationalEnvironmental Policy Act, 18 U. RICH. L. REV. 485 (1984) (discussing role of NEPA in shaping environmental
policy).
125. Comment, Putting Bite in NEPA 'sBark: New Council on Environmental Quality Regulations
for the Preparationof Environmental Impact Statements, 13 J.L. REFORM 367, 367 (1980).
126. See 42 U.S.C. §§ 4341-4347 (1982) (authorizing President to appoint three members
to establish Council on Environmental Quality (CEQ)). The CEQs primary duties are to
prepare an annual report on the environment, and to evaluate, recommend, and coordinate
policies relating to NEPA and the environment. Id. § 4344. In 1977, President Carter ordered the CEQ to promulgate regulations concerning the preparation and use of EISs that
1989]
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219
regulations that implement the procedural aspects of NEPA, and
that are binding on federal agencies.1 2 7 The CEQalso provides guidance for assisting federal agencies in implementing NEPA's
1 28
provisions.
The most important provision of the statute is the "action-forcing" section which requires government agencies to consider environmental factors when making significant decisions.1 2 9 If an
agency action may produce a significant environmental effect, the
agency must prepare an environmental impact statement (EIS).' 3 0
Through the EIS process, an agency considers alternatives to a proposed action.' 3 ' By focusing on alternatives, the agency can discover information concerning the environmental consequences of
alternative methods for achieving the objective of the proposed action.1 3 2 An agency must also consider the cumulative effect on the
environment that may result from the incremental impact of prowould be binding on federal agencies. Exec. Order No. 11,991, 42 Fed. Reg. 26,967 (1977)
(amending Exec. Order No. 11,514, 35 Fed. Reg. 4247 (1970)).
127. In 1978, the CEQissued mandatory regulations that established uniform procedures
for implementing all of the procedural provisions under section 102 of NEPA. 40 C.F.R.
§§ 1500-1508 (1988); see infra note 129 (quoting § 102 of NEPA).
128. 40 C.F.R. §§ 1500-1508 (1988).
129. National Environmental Policy Act, § 102(2)(C), 42 U.S.C. § 4332(2)(C) (1982). The
crucial language of the action-forcing section reads:
The Congress authorizes and directs that, to the fullest extent possible ... (2) all
agencies of the Federal Government shall(C)
include in every recommendation or report on proposals for legislation and
other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the
maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be
involved in the proposed action should it be implemented.
Id. Because of the sweeping nature of the EIS provision, one court has referred to NEPA as
an "environmental full disclosure" law. Environmental Defense Fund, Inc. v. Corps of
Eng'rs, 325 F. Supp. 749, 759 (E.D. Ark. 1971).
130. National Environmental Policy Act, § 102(2)(C), 42 U.S.C. § 4332(2)(C) (1982). A
recently amended CEQ regulation requires agencies to consider reasonably foreseeable impacts of their proposed actions through the EIS process. 40 C.F.R. § 1502.22 (1988). The
analysis of possible impact is based upon theoretical approaches or research methods generally accepted in the scientific community even if the scientific knowledge is incomplete. Id.
This assessment includes an evaluation of impacts which have catastrophic consequenceseven if the probability of their occurrence are low-provided that the analyses of the impacts
are supported by credible scientific evidence. Id.
131. National Environmental Policy Act, § 102(2)(C)(iii), 42 U.S.C. § 4332(2)(C)(iii)
(1982).
132. See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 833-38 (D.C.
Cir. 1972) (holding that agencies must include in statement reasonable alternatives to proposed actions and determine environmental impact).
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posed changes assessed against past, present, and reasonably likely
future actions. 13 3 In addition to the environmental impact assessment provision, the statute requires federal agencies to acknowledge the global and far-reaching nature of environmental
problems.' 3 4 Moreover, NEPA indicates that an EIS should assess
measures to mitigate any environmental harm that may occur as a
35
result of an agency's actions.1
B.
The Clean Air Act
In 1970, Congress enacted the Clean Air Act (CAA) Amendments 36 and dramatically changed the regulation of air pollutants. 13 7 Congress gave the newly created Environmental
Protection Agency (EPA) authority to administer the Act.13 8 The
133. 40 C.F.R. § 1508.7 (1988). This section describes a cumulative impact as:
[T]he impact on the environment which results from the incremental impact of the
action when added to other past, present, and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person undertakes such other
actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
Id.
134. National Environmental Policy Act, § 102(2)(F), 42 U.S.C. § 4332(2)(F) (1982). This
section reads as follows:
The Congress authorizes and directs that, to the fullest extent possible . . . (2) all
agencies of the federal government shall(F)
Recognize the worldwide and long-range character of environmental problems
and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions and programs designed to maximize
international cooperation in anticipating and preventing a decline in the quality
of mankind's world environment.
Id.
135. Id. § 10 1(a), 42 U.S.C. § 433 1(a); see 40 C.F.R. § 1508.20 (1988) (defining mitigation). For a discussion regarding the judicial implications of these provisions, see Comment,
supra note 125, at 396-99. In two recent decisions, the Supreme Court held that although
NEPA requires an agency, as part of an EIS, to discuss steps that could be taken to mitigate
harmful environmental effects, a federal agency is not required to formulate and adopt a complete plan to mitigate environmental harm. Robertson v. Methow Valley Citizens Council,
109 S. Ct. 1835, 1850 (1989); Marsh v. Oregon Natural Resources Council, 109 S. Ct. 1851,
1858-59 (1989).
136. Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42 U.S.C. §§ 7401-7626 (1982)). Congress passed the Clean Air Act in
1963, Pub. L. No. 88-206, 77 Stat. 392. The Act, however, was amended in 1970, Pub. L. No.
91-604, § 1, 84 Stat. 1676, and in 1977, Pub. L. No. 95-95, 91 Stat. 685, amended by Pub. L.
No. 95-190, 91 Stat. 1401-1402 (technical and conforming amendments). The amended version provides the framework for modern air pollution control. F. ANDERSEN, D. MANDELNER &
A. TARLOCK, ENVIRONMENTAL PROTECTION: LAW AND POLICY 135 (1984). This Comment will
hereinafter refer to the 1970 and 1977 amnendments as simply the Clean Air Act (CAA).
137. F. SKILLERN, ENVIRONMENTAL PROTECTION: THE LEGAL FRAMEWORK § 87 (1981) (noting that in Clean Air Act Amendments of 1970, Congress preempted most state involvement
in favor of direct federal control in regulation of air pollution).
138. J. ARBUCKLE, N. BRYSON, D. CASE, C. CHERNEY, R. HALL, J. MARTIN, J. MILLER, M.
MILLER, W.
PEDERSEN, R. RANDLE, R. STOLL, T. SULLIVAN & T. VANDERVER, ENVIRONMENTAL
LAw HANDBOOK 293 (1987) [hereinafter ENVIRONMENTAL LAw HANDBOOK]; see also Reorg. Plan
No. 3 of 1970, § 2(a)(3), 35 C.F.R. 15,623 (1970), reprintedin 5 U.S.C. app. at 1343, 1344
1989]
TURNING DOWN THE HEAT
CAA requires the EPA to identify ubiquitous air pollutants that may
endanger the public health and welfare.' 39 Next, the EPA must issue "air quality criteria" documents that describe the possible effects of these pollutants in varying quantities, 14 0 and establish
"control techniques" to achieve and maintain appropriate ambient
(outdoor) air quality standards.' 4 1 For each "criteria" pollutantthose that endanger public health and welfare-the CAA requires
the EPA to promulgate both primary and secondary national ambient air quality standards (NAAQS).142 Primary NAAQS are those
necessary to protect the public health with an adequate margin of
safety. 143 Secondary NAAQS must be set broadly to protect the
public welfare and are generally more stringent than primary
(1970), and in 84 Stat. 2086 (1970) (transferring to Administrator of Environmental Protection Agency functions vested by law in Secretary of Health, Education and Welfare, including
administration of Clean Air Act).
139. 42 U.S.C. § 7408(a)(1)(A) (1982). Emission standards for mobile sources and stationary sources-sources with specific points of origin, such as automobile tailpipes or factory
smokestacks-differ from ambient air quality standards to the extent that they are promulgated for many types of air pollutants that do not originate from a multitude of diverse
sources. Emission standards are set for two types of pollutants: "hazardous pollutants" and
"designated pollutants."
3 M. SQ.UILLACE, ENVIRONMENTAL LAw 42 (1988).
Section 112 de-
fines a hazardous air pollutant as a pollutant that may cause or contribute to "an increase in
mortality or an increase in serious irreversible, or incapacitating reversible illness." Clean Air
Act, § 112(a)(l), 42 U.S.C. § 7412(a)(1) (1982). Because this definition is extremely broad,
carbon dioxide might well be considered a hazardous pollutant, under section 112, as well as
a criteria pollutant. See S. REP. No. 1196, 91st Cong., 2d Sess. 18 (1970) (clarifying distinction
between criteria pollutants-substances that endanger public health and welfare-and those
regulated directly by federal emission standards). Similar to National Ambient Air Quality
Standards (NAAQS), emission standards for hazardous pollutants (NESHAPS) must be set at
levels adequate to provide ample margins of safety and must reflect public health considerations. Clean Air Act, § 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B) (1982). The EPA has promulgated hazardous air pollutant standards for asbestos, beryllium, benzene, mercury, coke oven
emissions, inorganic arsenic, radionuclides, and vinyl chloride. 40 C.F.R. § 61.01 (1988).
EPA promulgated the majority of these standards as a result of settled lawsuits or court orders. See, e.g., New York v. Gorsuch, 554 F. Supp. 1060, 1063-66 (S.D.N.Y. 1983) (ordering
EPA to establish emission standards for inorganic arsenic); Sierra Club v. Gorsuch, 551 F.
Supp. 785, 789 (N.D. Cal. 1982) (finding EPA failed to meet burden of demonstrating infeasibility or impossibility of issuing national emission standards for radionuclides); Environmental Defense Fund v. Ruckelshaus, 3 Envt'l L. Rep. (Envt'l L. Inst.) 20,173 (D.D.C. 1973)
(requiring EPA administrator to promulgate emission standards for asbestos, mercury, and
beryllium).
140. 42 U.S.C. § 7408(a)(2) (1982). The EPA issues air quality criteria which reflect the
latest scientific knowledge about these pollutants. Id.
141. Id. § 7408(d).
142. Id. § 7409. Primary NAAQS set levels of air quality that are "requisite to protect the
public health" and secondary NAAQS call for levels "requisite to protect the public welfare
from any known or anticipated adverse effects." Id. §§ 7409(b)(1)-(2). By basing NAAQS on
health and welfare considerations, Congress attempted to preclude technological and economic factors from setting the appropriate standards. Id. § 7409; see also American Petroleum
Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981) (ruling that cost should not be considered in setting standards for ozone), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass'n v.
EPA, 647 F.2d 1130, 1148-56 (D.C. Cir.) (holding that cost is irrelevant in promulgation of
NAAQS for lead), cert. denied, 449 U.S. 1042 (1980).
143. 42 U.S.C. § 7409(b)(1) (1982).
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 39:203
NAAQS. 14 4 Currently, standards exist for six "criteria" pollutants.14 5 After the EPA etablished NAAQS for these criteria pollutants, it required each state to submit a State Implementation Plan
(SIP) implementing and maintaining primary and secondary
14 6
NAAQS within the particular state's boundaries.
In fixing emission standards and timetables for reduction of various pollutants, the CAA relies on technology-forcing provisions.14 7
A primary purpose of the CAA is the initiation of research by the
EPA to develop technology designed to prevent and control air pollution.' 48 The EPA currently spends at least fifteen percent of its
funds on long-term research projects. 149 The EPA has a network of
national laboratories and research committees to develop research
strategies, and has established two scientific advisory panels to oversee its research functions. 150 Due to the mandates of the CAA, the
144. Id. § 7409(b)(2). Public welfare includes "effects on soils, water, crops, vegetation,
man-made materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on
personal comfort and well-being." Id. § 7602(h).
145. 40 C.F.R. §§ 50.4 to .12 (1988). Primary National Ambient Air Quality Standards
(NAAQS) are:
(1) Particulate matter: 150 micrograms per cubic meter-maximum 24-hr. concentration not to be exceeded more than once per year; id. § 50.6(a)
(2) Sulfur oxides: 0.14 parts per million-maximum 24-hr. concentration, not to be
exceeded more than once per year; id. § 50.4(b)
(3) Nitrogen dioxides: 0.053 parts per million-annual arithmetic mean; id.
§ 50.11 (a)
(4) Lead: 1.5 micrograms per cubic meter, maximum arithmetic mean averaged
over a calendar quarter; id. § 50.12
(5) Carbon Monoxide: 35 parts per million-maximum 1-hr. concentration not to
be exceeded more than once per year, id. § 50.8(a)(2), 9 parts per million-maximum 8 hr. concentration not to be exceeded more than once per year; id.
§ 50.8(a)(1)
(6) Ozone: 0.12 parts per million (ppm)-attained when the expected number of
days per calendar year with maximum hourly average concentrations above 0.12
ppm is equal to or less than one. Id. § 50.9(a).
146. 42 U.S.C. § 7410 (1982). Under certain circumstances, EPA may require a state to
revise its SIP if it is too lenient. Id. § 7410(a)(2)(H)(2). Thus, once the EPA has promulgated
NAAQS, the responsibility for carrying out the provisions of the CAA shifts to the states. Id.
§ 7410.
147. See F. ANDERSON, D. MANDELKER & A. TARLOCK,supra note 136, at 197-99 (explaining
that EPA sets standards above what current technology is capable of achieving, allowing industry time to develop technology to meet standards). Specifically, "technology-forcing" is a
statutory concept which compels polluters to meet standards by installing pollution abatement equipment instead of by reducing pollution through non-technical methods such as
switching to cleaner fuel sources. Id.; see also International Harvester Co. v. Ruckelshaus, 478
F.2d 615, 623 (D.C. Cir. 1973) (describing CAA's technology-forcing standards as "drastic
medicine" designed to force state of art); S. REP. No. 1196, 91st Cong., 2d Sess. 24 (1970)
(explaining that EPA is "expected to press for development and application of improved technology rather than be limited by that which exists ... today").
148. See F. ANDERSON, D. MANDELKER & A. TARLOCK, supra note 136, at 196-99 (discussing
EPA's role in technological innovation).
149. Environmental Research, Development, and Demonstration Authorization Act of
1981, 42 U.S.C. § 4363 (1982).
150. See NATIONAL COMMISSION ON AIR QUALITY, To BREATHE CLEAN AIR 70 (1981) (ex-
1989]
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223
EPA has assumed a primary regulatory role in the field of innovative
technology research.151
V.
TURNING
DoWN
THE HEAT: ANALYZING THE MEANS OF
CONTROLLING GLOBAL WARMING
The increasing levels of atmospheric carbon dioxide is a global
phenomenon caused by fossil fuel use and a host of other combustion processes employed worldwide.1 52 As scientific knowledge
continues to confirm the existence of global warming, worldwide
concern may mandate an international treaty in the near future to
ensure the cooperation necessary to halt the warming trend.15 3 The
following section focuses on possible responses to the problems of
global warming that the United States can adopt through its domestic laws prior to the establishment of such a treaty.' 54 Specifically,
this section examines immediate actions that governmental agencies
can implement through the existing framework of the NEPA and the
plaining that Clean Air Scientific Advisory Committee reviews criteria published under § 108
of CAA and standards promulgated under § 109 for purpose of recommending revisions, and
that Science Advisory Board has general oversight responsibilities).
151. In 1987 and 1988, at the behest of Congress, the EPA prepared two studies on global
warming issues. Interview with Alan Miller, Council to the EPA, in Washington, D.C. (Aug.
15, 1988). The first report focuses on the effects of climate change, and the companion report
formulates policies and examines options necessary to stabilize the greenhouse effect. Id.; see
EPA OFFICE OF POLICY, PLANNING AND EVALUATION & OFFICE OF RESEARCH AND DEVELOPMENT,
THE POTENTIAL EFFECTS OF GLOBAL CLIMATIC CHANGES ON THE UNITED STATES (Oct. 1988).
During its studies, the EPA convened panels of experts, searched the scientific literature, and
ran computer models of the global climate. See Global Warming Could Cost U.S. $111 Billion,
Engulf Coasts, Severely Damage Environment, [Current Developments] Env't Rep. (BNA) No. 29,
at 1471 (Nov. 18, 1988). The EPA is currently preparing a study to determine the effects of a
global warming trend on urban air pollution. EPA Study of Global Warming Effects on UrbanAir
Quality Planned,Officials Say, [Current Developments] Env't Rep. (BNA) No. 29, at 1470 (Nov.
18, 1988).
152. See supra notes 38-85 and accompanying text (discussing causes of global warming).
153. Thus far, two major, international meetings have addressed global warming: workshops convened simultaneously in Villach, Austria and Bellagio, Italy under the auspices of
the World Meteorological Organization, the United Nations Environment Program and the
International Council of Scientific Unions (Oct. 1985); and the Changing Atmosphere Conference held in Toronto, Canada (June, 1988). The World Meteorological Organization and
the United Nations Environment Program founded the Intergovernmental Panel on Climate
Change (IPCC) in 1988; the IPCC's mission is to study and recommend strategies for dealing
with global warming issues. Hajost, The "Greenhouse Effect," the Ozone Layer, and the Law, in
AMERICAN LAW INSTITrrE-AMERICAN BAR ASSOCIATION COURSE OF STUDY IN ENVIRONMENTAL
LAW MATERIALS 434 (1989). In November 1988, the IPCC convened its first meeting, establishing three working groups to assist it in accomplishing its work. Id. The United States
chairs the working group responsible for determining viable applications of existing legal
mechanisms to help curb global warming, and for considering new legal tools for implementing response options. Id. In January 1989, at a meeting connected with the IPCC, James
Baker, in his first public appearance as Secretary of State, stressed the importance of finding
ways to counteract global warming. Goshko, Baker Urges Steps on Global Warming, Wash. Post,
Jan. 31, 1989, at A6, col. I (stating that Baker's position represented change from Reagan
administration's lack of earlier involvement concerning global warming issues).
154. See infra notes 160-243 and accompanying text (discussing present and possible legislation designed to curb escalation of global warming).
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CAA.155 Although certain reforms in these laws may be necessary to
achieve maximum and complete responses by those responsible, 15 6
this inquiry seeks to determine the scope of the agencies' discretionary power and the extent to which these agencies are compelled by
the force of law to act. In this regard, the section uses ozone depletion as an analogue for determining strategies for halting global
warming and examines proposals for new legislation. 15 7 Although
congressional and state action can make only limited inroads into
the global carbon dioxide problem, affirmative governmental responses are nevertheless extremely important because they may
build a consensus for international cooperative action as well as provide the United States with the strategies necessary to adapt to a
warmer climate.' 5 8 Additionally, technological strategies to curb
global warming may help to alleviate and remedy this country's environmental problems of worsening smog and acid rain as well as its
economic dependence on foreign oil. 159
A.
The National Environmental Policy Act
In its present form, NEPA could be an effective tool in combatting
certain aspects of global warming.1 60 Although NEPA only applies
155. See infra notes 160-91 and accompanying text (outlining provisions of NEPA and
CAA).
156. See infra notes 169-91 and accompanying text (proposing possible changes in NEPA
and CAA to increase their effectiveness).
157. See infra notes 192-243 and accompanying text.
158. See infra notes 192-210 and accompanying text (using ozone depletion as analogue
for showing possible state, federal, and international action to combat greenhouse effect).
159. See Becker, Reducing Air PollutionBrings a "Two-fer", ENvrL. AcrIoN,Jan.-Feb. 1989, at
20 (describing two benefits for one cleanup).
160. A Senate report asserts that NEPA provides "both the legal basis and procedural
framework for assessing the potential effects of federal activities on the global climate... as
part of the EIS process." S. REP. No. 502, 100th Cong., 2d Sess. 2 (1988).
In a letter to the CEQ the Senate Committee on Environment and Public Works asked that
the Council inform federal agencies of their statutory duty to use the EIS process and to
provide the agencies with general background resources for their edification. Letter from
SenatorJohn H. Chafee to A. Alan Hill, CEQChairman (Sept. 12, 1986). In its response, the
CEQacknowledged this responsibility and noted the preparation of three existing EISs which
have taken global warming issues into account. Letter from A. Alan Hill to SenatorJohn H.
Chafee (March 3, 1987). These EISs are: the Federal Aviation Administration's EIS on the
Applications of Air France and British Airways to Operate the Concorde in the United States
(1975); the Food and Drug Administration's EIS on its regulatory action to limit use of CFCs
as propellants in aerosols (1977); and the National Aeronautics and Space Administration's
EIS on the Space Shuttle Program (1978). Id.
Recently, both CEQ and EPA have expressed concerns that federal agencies are failing to
include discussions of global warming issues in their EISs. 53 Fed. Reg. 40,260 (1988). CEQ
is currently proposing guidelines that are the product of over 18 months of public meetings to
help agencies incorporate global warming concerns into their EISs. CEQ Developing Guidance,
[Current Developments] Env't Rep. (BNA) No. 26, at 1243 (Oct. 28, 1988).
Although legislation targeted directly at global warming may ultimately be necessary before
any major inroads can be accomplished, NEPA may serve as an effective interim strategy.
Indeed, NEPA could be employed in a manner similar to the Carter Administration's use of
1989]
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225
to activities of the federal government, its requirements have been
applied to many private activities that require federal approval.1 6 1
Specifically, the courts have held that NEPA applies even when the
federal role is limited to funding, leasing land, or permitting or
otherwise approving private activities that have environmental consequences. 162 Consequently, the environmental impact assessment
provision of NEPA applies to global warming issues because many
major federal actions add greenhouse gases to the atmosphere.' 63
Due to the global and ubiquitous nature of the warming trend, however, few federal actions alone can be considered major contributors. 1 64 Nevertheless, because NEPA requires federal agencies to
address cumulative impacts,' 6 5 an EIS should accompany any
agency action that contributes to global warming.' 66
The regulation of automobiles offers an initial avenue to decrease
the 'Resource Conservation and Recovery Act (RCRA), which was used to halt the illegal
dumping of hazardous waste. National Conservation and Recovery Act, 42 U.S.C. § 6973
(1976). See F. ANDERSON, D. MANDELKER & A. TARLOCK, supra note 136, at 590-91 (noting that
in 1979, prior to enactment of Superfund, Carter Administration initiated program of litigation under RCRA to compel cleanup of abandoned hazardous waste sites).
161. See Gifford-Hill & Co. v. FTC, 389 F. Supp. 167, 174 (D.D.C. 1974) (holding that
NEPA applies to non-federal parties' actions which have environmental impact and for which
federal permission is required), aff'd, 523 F.2d 730 (D.C. Cir. 1975); Boston Waterfront Residents Ass'n v. Romney, 343 F. Supp. 89 (D. Mass. 1972) (enjoining private recipient of HUD
grant from proceeding with demolition work until HUD had complied with NEPA); see also 42
U.S.C. § 4332(2)(c) (1982) (stating that EIS is required for "major Federal actions significantly affecting the quality of the human environment").
162. See, e.g., Davis v. Morton, 469 F.2d 593, 597 (10th Cir. 1972) (approving 99 year lease
on Indian reservation within NEPA jurisdiction); Calvert Cliffs' Coordinating Comm. v.
United States Atomic Energy Comm'n, 449 F.2d 1109, 1112-13 (D.C. Cir. 1971) (reviewing
NEPA rules that apply in licensing proceedings for construction and operation of nuclear
power plants by private companies); Natural Resources Defense Council, Inc. v. Berklund,
458 F. Supp. 925, 935 (D.D.C. 1978) (holding NEPA applies to preference right coal lease),
aft'd, 609 F.2d 553 (D.C. Cir. 1979).
163. See 42 U.S.C. § 4332(2)(c) (1982) (setting procedure that agencies must follow if
their actions will have significant environmental effect).
164. See id. (requiring EIS for "major Federal action"); see also supra notes 38-85 and accompanying text (describing factors that contribute to global warming).
165. NEPA requires an agency to consider its actions in light of "other past, present, and
reasonably foreseeable future actions, regardless of what agency (Federal or non-Federal) or
person undertakes such other actions." 40 C.F.R. § 1508.7 (1988). See supra note 133 and
accompanying text (discussing cumulative impact provision).
166. Courts have ordered agencies to address the effects of cumulative impacts. See, e.g.,
Fritiofson v. Alexander, 772 F.2d 1225, 1247 (5th Cir. 1985) (holding that Army Corps of
Engineers failed to consider cumulative impact of its project on ecosystem of adjacent waters);
Thomas v. Peterson, 753 F.2d 754, 757-61 (9th Cir. 1985) (requiring that EIS consider environmental impacts of construction of logging road, as well as sales of timber); Essex County
Preservation Ass'n v. Campbell, 536 F.2d 956, 962-63 (Ist Cir. 1976) (declaring that contribution to energy crisis appropriate question regarding highway construction); NRDC v. Callaway, 524 F.2d 79, 87-91 (2d Cir. 1975) (deciding EIS on ocean dumping inadequate because
some types of dumping not considered); Akers v. Resor, 443 F. Supp. 1355, 1366 (W.D.
Tenn. 1978) (directing Army Corps of Engineers to consider cumulative impact of several
flood control projects).
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emissions of carbon dioxide. 167 Presently, the federal government
regulates automobiles to a significant extent, thus arguably providing the necessary federal "handle" for triggering NEPA. 168 Specifically, regulating agencies should be required to prepare an EIS, or
its equivalent, 169 to study and consider alternatives for lowering current emission levels of carbon dioxide from automobiles. One alternative-which would cut greenhouse emissions significantly-is to
require auto manufacturers to meet certain criteria in the design of
new cars. 170 A possible requirement would entail mandating that
manufacturers only produce cars that obtain a certain miles-pergallon rate and to increase this rate annually. 17 1 Another option is
to use consumer incentives and disincentives. For example, Con167. Estimates show that there are more than 100 million light cars and trucks currently in
use in the United States and that they consume over seven million barrels of oil per day,
produce their weight per year in carbon dioxide emissions, and are responsible for approximately one-third of all United States greenhouse gas emissions. 134 CONG. REC. E3263 (daily
ed. Oct. 6, 1988) (statement of Rep. Schneider). A five mile-per-gallon improvement in auto
mileage would reduce carbon dioxide emissions by 100 million tons per year. Moore, Why
Wait 20 Years for Clean Air?, Wash. Post, June 18, 1989, at C3, col. 1.
168. See, e.g., 42 U.S.C. § 7522(a)(3)(A) (1982) (prohibiting removal of devices or elements of design installed in motor vehicle to control emissions); 42 U.S.C. § 7522(a)(1)
(1982) (requiring certification of compliance with prescribed regulations); 42 U.S.C. § 7521
(1982) (regulating emissions of carbon monoxide and hydrocarbons from vehicles); 42 U.S.C.
§ 7525 (1982) (requiring new motor vehicles to be tested for compliance with prescribed
emissions regulations).
169. The courts have held that when agency regulatory legislation requires processes
equivalent to NEPA's EIS process, the agency is exempt from the EIS process. D.
MANDELKER, LAW AND LrIGATION § 5:15 (1984 & Supp. 1988). The courts, however, have
limited application of this doctrine to EPA administered actions. Id.; see Portland Cement
Ass'n v. Ruckelshaus, 486 F.2d 375, 384-87 (D.C: Cir. 1973) (articulating functional
equivalency doctrine), cert. denied, 417 U.S. 921 (1974). Following judicial recognition of the
functional equivalency of the EPA's clean air operations, Congress exempted EPA actions
under the CAA from NEPA. The Energy Supply and Environmental Coordination Act of
1974, 15 U.S.C. § 793(c)(1) (1982); see also Ethyl Corp. v. EPA, 541 F.2d 1, 53-55 (D.C. Cir.)
(holding that EPA not required to file EIS before promulgating regulations limiting use of
lead in gasoline), cert. denied, 426 U.S. 94 (1976). See generally F. ANDERSON, D. MANDELxER &
A. TARLOCK, supra note 136, at 719-20 (explaining that functional equivalency doctrine is applicable to agency actions that protect rather than harm environment).
170. See Hearings on S. 2666, supra note 4, at 307 (testimony of Deborah L. Bleviss, Int'l
Inst. for Energy Conservation) (explaining that there is direct correlation between fuel economy improvement and carbon dioxide reduction such that doubling of fuel economy results
in halving of carbon dioxide emissions); see also Rifikin, The Greenhouse Doomsday Scenario, Wash.
Post,July 31, 1988, at C3, col. 1 (stating that Department of Transportation 1.5-mpg rollback,
from 27.5 mpg to 26 mpg, wasted more oil than amount existing in areas currently protected
in Alaska and off California coast).
171. For example, 26 mpg in model year 1989, 30 mpg in 1990, 35 mpg in 1991, and so
forth. See Yates, Killing Ourselves (Gasp!) with Big Engines, Wash. Post, Aug. 14, 1988, (Magazine), at 45 (contending that no viable reason exists for passenger cars to have engines larger
than two liters); see also 134 CONG. REC. E3264 (daily ed. Oct. 6, 1988) (statement of Rep.
Schneider) (observing that at least seven auto manufacturers have tested safe and cost-effective prototype cars with mpg between 67 and 121). Cars that run on non-polluting fuels have
been developed already and are becoming more cost-efficient. See 26 Air/Water Pollution
Rep. (BPI) 232 (June 27, 1988) (noting that one thousand cars are to be provided in 1989 that
run on electricity and are only 1.6 times more expensive than fossil-fueled vehicles).
19891
TURNING DOWN THE HEAT
227
gress could restructure and strengthen the existing gas-guzzler tax,
which discourages the purchase of inefficient gas-guzzlers.1 72 In addition, the responsible government agency could offer tax incentives
173
for the purchase of highly efficient cars.
Stationary sources, such as power plants that burn coal to create
174
energy, are also major contributors of carbon dioxide emissions.
Because state and local governments highly regulate the utility industry, the industry may also be subject to state NEPA requirements.' 75 Through the EIS process of a state NEPA regulation, a
state or municipal agency could explore various alternatives for reducing carbon dioxide emissions and probably find solutions that
would be both economically and technologically feasible.' 7 6 In fact,
several innovative procedures already exist for extracting carbon
from coal, though many are still in the early developmental
phase.
1 77
As with the utility industry, businesses that use fossil fuels in the
manufacture of residential, office, and industrial appliances should
be subject to NEPA. Congress should pass legislation requiring the
appliance industry to adhere to efficiency standards that take contributions of carbon dioxide levels into account. 178 Possible alterna172. See Yates, supra note 171, at 46 (arguing that present gas-guzzler taxes are woefully
inadequate). SenatorJohn Chafee used this strategy in his proposed bill, the "Global Greenhouse Warming Prevention Act of 1988." S. 2867, 100th Cong., 2d Sess. (1988).
173. Senator Albert Gore's proposed bill (S. 201) contains a provision for federal income
tax credits for the purchase of highly fuel efficient cars. S. 201, 101st Cong., 1st Sess. (1989).
See infra notes 220-30 and accompanying text (outlining features of Senator Gore's bill).
174. Cody, Environment to Take Center Stage at Summit, Wash. Post, July 13, 1989, at Al, col.
2, A3 1, col. I (stating that large proportion of carbon dioxide emitted by power plants and
automobiles is difficult to control because regulations will affect "quality of life" in developed
countries). See also ENVIRONMENTAL LAw HANDBOOK, supra note 138, at 293 (stating that in
1967 Congress broadened CAA with respect to stationary source control).
175. See supra note 123 (discussing state NEPA laws).
176. For discussion of some provocative proposals, see Broad, Scientists Dream Up Bold
Remedies for Ailing Atmosphere, N.Y. Times, Aug. 6, 1988, § Y (Science Times Magazine), at 19
(exploring ways to not only spark concrete plans but also inspire ideas about how to deal with
climate problems); Moore, supra note 167, at C3, col. I (contending that many high-efficiency,
low-pollution advances are already available, but are being overlooked by cost conscious, status-quo minded policy makers). See generally Technologiesfor Remediating Global Warming: Hearing Before the Subcomm. on NaturalResources, AgricultureResearch and Environment and the Subcomm.
on Science, Research and Technology of the House Comm. on Science and Technology, 100th Cong., 2d
Sess. 1 (1988) (exploring technologies for abating global warming).
177. See Hearings on S. 2666,supra note 4, at 285-97 (statement of Meyer Steinberg, Brookhaven National Laboratory) (explaining process that splits coal into carbon and hydrogen
which uses only hydrogen, thus eliminating carbon dioxide emissions).
178. In 1988, former Senator Robert Stafford introduced global warming legislation that
included a provision aimed at the improvement of the energy efficiency of residential appliances. See S. 2666, 100th Cong., 2d Sess. § 118 (1988). To enforce residential controls, the
bill set forth specific standards for energy efficient furnaces, central air conditioners, and hotwater heaters. Id. These standards would be subject to continuous updating. Specifically, the
bill required the use of appliances with the best available residential control technology, in
order to achieve a maximum degree of reduction of emissions of carbon dioxide. Id.
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tives might include methods to produce more energy efficient
appliances, as well as expanding the manufacture of solar-powered
appliances.
To offset carbon dioxide emissions in general, the federal government should require a tax on all fossil fuels.' 7 9 As a condition of
funding, state and local entities that have NEPA laws should require
governmental agencies within their control to prepare EISs that are
cognizant of global warming issues. Local governments could extend this concept to entities such as schools, hospitals, and other
institutions that the government funds wholly or in part. States and
cities without their own NEPA laws should consider enacting such
legislation. 8 0
B.
The Clean Air Act
To help combat the problems of global warming, the CAA' 8 1
must be amended. 18 2 The amendment process could occur in one
of two ways. First, the agencies overseeing the CAA could administratively implement regulations that change the status of carbon dioxide to a pollutant. 8 3 Second, if the agencies are unwilling to
issue new regulations, Congress could accomplish the change
184
through formal amendments to the CAA.
Because it is not directly harmful to human health, carbon dioxide
differs from the "criteria" pollutants that are subject to national ambient air quality standards (NAAQS).18 5 Given its contributory ef179. See Komanoff, Instead of a Gas Tax, How About a Carbon Tax?, Wash. Post, Mar. 6, 1989,
at A15, col. 2 (contending that policymakers should consider taxing fuels according to their
contribution to greenhouse effect).
180. See Nichols, EstablishingState EIA Procedures, in ENVIRONMENTAL IMPACT ASSESSMENT:
PROCEEDINGS OF A CONFERENCE ON THE PREPARATION AND REVIEW OF ENVIRONMENTAL IMPACT
STATEMENTS 76 (N. Robinson ed. 1987).
181. 42 U.S.C. §§ 7401-7626 (1982).
182. Interview with Steven J. Shimberg, Counsel to the Senate Comm. on Environment
and Public Works (Oct. 31, 1988). Currently, the EPA, which is responsible for administering
the CAA, bases its criteria on a pollutant's impact on human health, and not its impact on
climate. 42 U.S.C. § 7409 (1982).
183. Interview with StevenJ. Shimberg, Counsel to the Senate Comm. on Environment
and Public Works (Oct. 31, 1988).
184. Administrative agencies may be reluctant to act in areas of controversy. See generally
Wood, Acid Rain and the Clean Air Act: Agency Inaction and the Need ForLegislated Reforin, 6 VA.J.
NAT. RESOURCES L. 213 (1986) (discussing EPA's inaction concerning acid rain). In 1977,
Congress amended the CAA to permit the EPA to issue regulations controlling substances
and activities that deplete the ozone layer; to enact such regulations the EPA must find that an
activity may reasonably affect the ozone layer in a way adverse to health and welfare. Pub. L.
No. 95-95, 91 Stat. 726 (codified at 42 U.S.C. §§ 7450-7459 (1982)); see 40 C.F.R. § 82.20
(1988) (requiring producers, importers, and transporters of certain chemicals to report to
EPA).
For a discussion of other examples of possible congressional intervention that could case
global warming, see infra notes 211-43 and accompanying text.
185. See Einhorn & Charo, supra note 79, at 498 n.10 (noting that although carbon dioxide
1989]
TURNING DOWN THE HEAT
229
fects to global warming, however, carbon dioxide arguably poses a
greater threat to human health than criteria pollutants regulated
under the CAA. 18 6 Indeed, the Court of Appeals for the Second
Circuit provided a useful analogy for the regulation of carbon dioxide when it established lead as a criteria pollutant in NaturalResources
Defense Council, Inc. v. Train.18 7 The plaintiffs, the Natural Resources
Defense Council, Inc., argued that because the EPA Administrator
determined that lead has an adverse effect on health and welfare,
and because lead comes from numerous and diverse sources-as required under section 108 of the CAA-the Administrator was required to list lead as a pollutant.1 8 The court agreed with the
plaintiffs and held that when a statutory harmful effect finding is
made, the EPA has a mandatory duty to issue a NAAQS for that
pollutant.18 9
Moreover, because global warming adversely affects the public
welfare, the EPA could be required to issue secondary NAAQS for
carbon dioxide without any change in the CAA's provisions.190 The
appears to meet statutory requirements for classification as pollutant, it poses different type of
danger than criteria pollutants). Pollutants subject to NAAQs directly contribute to the incidence of such chronic diseases as emphysema, bronchitis, and other respiratory ailments, and
have been linked to higher mortality rates from other illnesses such as cancer and arteriosclerotic heart disease. See generally F. ANDERSON, D. MANDELKER & A. TARLOCK, supra note 136, at
120-25 (describing health risks from criteria pollutants).
186. See Weiss, A Resource ManagementApproach to Carbon Dioxide Duringthe Century of Transition, 10 DEN. J. OF INT'L L. & POL'Y 487, 489 n.8 (opining that consequences of greenhouse
effect justify classifying carbon dioxide as "criteria" pollutant).
Furthermore, one may argue that the drafters of the CAA did not envision the regulation of
only those pollutants that have a proven adverse effect, but rather those pollutants that "may
reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A)
(1982). This statutory language strengthens the case for considering carbon dioxide, whose
adverse effects are still being questioned, as a pollutant under the CAA. See Lead Indus. Ass'n
v. EPA, 647 F.2d 1130, 1154-55 (D.C. Cir.) (stating that "requiring EPA to wait until it can
conclusively demonstrate that a particular effect is adverse to health before it acts is inconsistent with... the Act's precautionary and preventive orientation"), cert. denied, 449 U.S. 1042
(1980).
187. 411 F. Supp. 864 (S.D.N.Y.), aff'd, 545 F.2d 320 (2d Cir. 1976). Plaintiffs, a citizens
group, brought the suit under section 304, the citizens suit provision of the CAA. Id.; see
Clean Air Act, § 304, 42 U.S.C. § 7604 (1982) (authorizing citizens to bring action against any
person, including United States, "alleged to be in violation of an emission standard").
Lead, like carbon dioxide, is an abundant, naturally occurring, and ubiquitous element; the
use of lead, which is highly toxic, has become pervasive due to its function as a gasoline
additive. Lead Indus. Ass'n, 647 F.2d at 1135. A major problem in the EPA's establishment of a
NAAQS for lead was that, besides airborne lead, other sources of lead also contribute to the
amount of lead found in human blood. See 42 Fed. Reg. 63,080 (1977) (stating that high
levels of lead in blood are common, particularly in individuals living in industrial areas).
188. Natural Resources Defense Council, Inc. v. Train, 545 F.2d 320, 325 (2d Cir. 1976).
189. Id. at 328. The court held that when the EPA listed lead under section 108(a)(1) of
the CAA, it automatically invoked sections 109 and 110 of the Act, which require the EPA
Administrator to simultaneously issue NAAQS. Id.; see also D. CURRIE, AIR POLLUTION FEDERAL LAW AND ANALYSIS § 4.03 (1981 & Supp. 1986) (contending that EPA has absolute duty
to promulgate NAAQS for criteria pollutants).
190. The CAA broadly defines welfare effects to include most of the expected adverse
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CAA allows states to issue their own ambient air quality standards,
which are often more stringent than federal standards and cover
pollutants not actionable under the CAA.' 9 1 Consequently, progressive states interested in protecting against global warming effects should take the initiative in regulating carbon dioxide and
other greenhouse gas emissions.
C.
The Ozone Analogy
The ozone depletion problem serves as a useful analogue for the
measures that can be taken to reduce greenhouse gas emissions.
The purpose of many environmental statutes is to encourage technological research and development aimed at solving a variety of
pollution problems. 19 2 Occasionally, the mere threat of governmental interference compels industry to action. For example,
shortly after the EPA announced that it was considering levying special fees on CFC producers, the world's largest CFC manufacturer
announced the development of a substitute for CFCs and planned
19 3
to cease their production by the turn of the century.
As an example of state-level action, the State of Massachusetts
filed suit against a factory that emitted CFCs in violation of Massachusetts' clean air act and environmental protection act. 19 4 The
proposed consent decree required the factory to phase out releases
of CFCs by the end of 1988 and pay a $700,000 fine.' 95 Further,
Massachusetts environmental statutes require firms to obtain perconsequences of global warming. 42 U.S.C. § 7602(h) (1982). But see Wood, supra note 184,
at 221 (arguing that rules regarding employment of secondary NAAQS are not sufficiently
stringent and have allowed EPA to avoid taking effective action with respect to certain acid
rain-causing pollutants). The states, through State Implementation Plans (SIPs), must reach
and maintain the health-based primary NAAQS as expeditiously as practicable; however, primary standards must be met within three years of their promulgation. 42 U.S.C.
§ 7410(a)(2)(A) (1982). States, however, are only required to reach the welfare-based secondary NAAQS within a "reasonable time." Id.; see supra notes 142-46 and accompanying text
(discussing procedures for establishing NAAQS and SIPs).
191. See, e.g., CAL. ADMIN. CODE tit. 17, §§ 70200, 70201.5 (1986) (setting forth NAAQS
for hydrogen, sulfide, sulfates, and vinyl chloride); HAW. CODE R. & REos. § 11-59-4 (1986);
MoNT. CODE ANN. § 75-2-202 (1987) (determining NAAQS for flourides by establishing limitations of flourides in forage grasses, hay, and storage).
192. See I F. GRAD., TREATISE ON ENVIRONMENTAL LAW § 2.03, at 2-73 (1989) (noting increasing stringency of federal vehicle emissions standards as means of forcing automotive
technology).
193. Dupont Leads the Way, SUPPLY HousE TIMES, Oct. 1988, at 72. E.I. Du Pont de
Nemours & Co. invented CFCs in the 1930s and currently produces 50%o of the U.S. market
and 25% of the market worldwide. Id. The company expects to have substitutes for the major
CFCs, CFC 11 and 12, available for commercial use by late 1992. Id.
194. Massachusetts v. PI, Inc., No. 88-3653 (Mass. Super. Ct., Aug. 23, 1988).
195. See Settlement Would Require Company to Pay $700,000 Fine, Phaseout Releases of CFCs, [ 19
Current Developments] Env't Rep. (BNA) 1035 (Sept. 2, 1988) [hereinafter Settlement]
(describing suit as first ever brought by any state to halt release of CFCs).
19891
TURNING DOWN THE HEAT
231
mits to release CFCs and to report the quantity of CFCs emitted.19 6
Other states and the federal government could follow the Massachusetts scheme by enacting laws requiring firms to obtain permits to
emit carbon dioxide, and to report the amounts of carbon dioxide
97
they release.1
The United Nations Environment Program (UNEP), established
by the United Nations in 1973, is the primary entity responsible for
coordinating action on an international level to protect the ozone
layer.' 98 In 1985, UNEP held the Vienna Convention for the Protection of the Ozone Layer.' 99 As a result of the convention, member nations agreed to convene a working group to establish a
protocol for the control and regulation of international use and pro20 0
duction of CFCs.
Accordingly, UNEP convened the Conference of Plenipotentiaries
196. The Massachusetts Clean Air Act, MASs. GEN. L. ch. 111, §§ 142A-142J (1985); The
Massachusetts Environmental Policy Act, MASs. GEN. L. ch. 30 § 61-62H (1985). The Massachusetts Clean Air Act authorizes the Massachusetts Department of Environmental Quality
Engineering (DEQE) to adopt regulations "to prevent pollution or contamination of the atmosphere." MASs. GEN. L. ch. 111 §§ 142A-142J (1985). Pursuant to this authority, DEQE
promulgated the following air pollution control regulations:
No person owning, leasing, or controlling the operation of any air contamination
source shall willfully, negligently, or through failure to provide necessary equipment
or to take necessary precautions, permit any emission from said air contamination
source or sources of such quantities of air contaminants which will cause, by themselves or in conjunction with other air contaminants, a condition of air pollution.
(a) Any person owning, operating, or controlling a facility described in 310 CMR
7.12(3) through (7) shall register on a form supplied by the Department such information as the Department may specify including:
1. the nature and amounts of emissions from the facility,
2. information which may be needed to determine the nature and amounts of emissions from the facility, and
3. any other information pertaining to the facility which the Department requires.
MAss. REGS. CODE tit. 310, §§ 7.01, 7.12 (1985).
The defendants in Massachusettsv. PI, Inc. had neither reported their emissions, nor applied
for permits. See Settlement, supra note 195, at 1035.
197. With respect to CFCs, the EPA has broad authority under the Toxic Substances Control Act (TSCA) to reduce risks from chemicals already in commerce. 15 U.S.C. §§ 2601-2629
(1982). TSCA includes a regulation that limits the amount of CFCs released into the atmosphere. See Fully Italogenated Chlorofluoroalkanes, 40 C.F.R. pt. 762 (1988) (banning all but
certain "essential" uses of CFCs as propellants in aerosol spray containers, applying to manufacturers, processors, and distributors); Comment, Thinning Air, Better Beware: Chlorofluorocarbons and the Ozone Layer, 6 DICK. J. INT'L L. 87, 95 (1987) (noting that manufacturers who
produce CFCs for use in aerosols must report to EPA quantity of CFCs involved).
198. See Comment, The Problem of Ozone Depletion-Is There an InternationalLegal Solution?, 12
N.CJ. INT'L & COM. REG. 433, 448 (1987) (explaining methods UNEP uses to coordinate
environmental activities of United Nations agencies as well as other international
organizations).
199. Vienna Convention for the Protection of the Ozone Layer, March 22, 1985, printedas
S. TREATY Doc. No. 99-9, 99th Cong., 1st Sess., 1985 (ratified by the United States in August,
1986) [hereinafter Vienna Convention].
200. Final Act of the Conference on Plenipotentiaries on the Protection of the Ozone
Layer, Resolution on a Protocol Concerning Chlorofluorocarbons, at 8, reprinted in Vienna
Convention, supra note 199, at 9.
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on the Protocol on Chlorofluorocarbons to the Vienna Convention
for the Protection of the Ozone Layer, which met in Montreal, Canada in September 1987 to negotiate the Montreal Protocol.2 0 1 More
than fifty nations participated in this model of international cooperation. 20 2 The Montreal Protocol called for a freeze, at 1986 levels,
in the production and consumption of five fully halogenated CFCsthe most commonly utilized and most ozone-damaging-by July 1,
1989.203 Because the Conference engendered the cooperation of
many diverse nations, it has significant implications for future actions that address related environmental issues such as global warming. The latest meeting of the Conference, convened in The Hague
in October 1988, included discussions concerning global warming. 20 4 UNEP plans another conference devoted solely to this issue
in 1990.205
In addition, Great Britain's Prime Minister Margaret Thatcher
sponsored the most recent international conference on ozone layer
erosion in London in March 1989.206 Prime Minister Thatcher convened the London Conference to raise world consciousness on
ozone depletion issues, as well as to win Third World backing for a
ban on CFCs that would surpass the scope of the 1987 Montreal
Protocol. 20 7 Many of the Third World countries in attendance, however, expressed concern that such a ban could jeopardize their modernization plans. 20 8 Although the Conference ended without the
201. UNEP, Montreal Protocol on Substances That Deplete the Ozone Layer, Final Act,
Sept. 16, 1987.
202. Id. at 10.
203. Montreal Protocol for the Protection of the Ozone Layer, openedfor signature Mar. 22,
1985, U.N. Doc. UNEP/lG.53/5/Rev.1, reprinted in 26 I.L.M. 1529 (1987). The Protocol,
which became effective as ofJanuary 1, 1989, called for a 20% cut of CFCs beginning in 1993,
and a 30% cut beginning in mid-1998, for a total reduction of 50% by the end of the century.
Id. In its September 1988 study, however, the EPA concluded that an immediate 100% reduction in the use of all fully halogenated compounds (CFCs and halons), and a freeze in the use
of methyl chloroform (a chemical used primarily as a solvent) will be needed to stabilize concentrations of chlorine and bromine; chlorine and bromine are the chemical components of
CFCs which deplete the ozone layer in the stratosphere. EPA, FUTURE CONCENTRATIONS OF
STRATOSPHERIC CHLORINE AND BROMINE (1988).
204. See Int'l Env't Rep. (BNA) 581, 582-83 (November, 1988) (noting that alternatives to
ozone depleting substances must also avoid contribution to global warming).
205. UNEP held a meeting on May 10, 1989, in Geneva to plan an international global
warming conference which it hopes will culminate in an international treaty. See Weisskopf,
U.S. Commits to Talks on "Greenhouse", Wash. Post, May 13, 1989, at Al, col. 1 (explaining that
United States will host "global workshop" in October 1989 to try to reach international consensus for treaty).
206. See Randal, "Greening" of Thatcher Surprises Many Britons, Wash. Post, Mar. 4, 1989, at
A20, col. I (noting that reasons for Thatcher's sudden conversion from anti-environmentalist
to environment champion remain obscure).
207. See Randal, Conference Opens On Ozone, Wash. Post, Mar. 6, 1989, at A9,col. 6 (stating
that London Conference goal is to reduce global emissions of CFCs by 85% by year 2000).
208. See Randal, Third World Seeks Aid Before Joining Ozone Pact, Wash. Post, Mar. 6, 1989, at
1989]
TURNING DOWN THE HEAT
establishment of a global consensus on a CFC ban, the Conference
did produce United States and European Community recognition
that a two-track system of CFC phaseout is possible: developed nations would expeditiously phaseout CFCs, 20 9 while less-developed
nations would abide by the Montreal Protocol timetable of phasing
out half their CFC emissions by the year 2000.210
D. ProposedLegislation
Recently, Congress has been wrestling with global warming issues. 2 1 1 Congressional committees heard public testimony conA16, col. 3 (explaining that many Third World leaders want financial and technological aid as
well as access to substitutes for ozone-eroding chemicals).
209. Prior to the London Conference, the European Community (EC) agreed at a meeting
in Brussels to institute a total ban on CFCs by the turn of the century. Randal, supra note 207.
During the opening day of the Conference, the EC proposed advancing the date of complete
phaseout to either 1996 or 1997. Id. President Bush pledged United States support for the
EC's timetable to eliminate CFC production by the end of the century. See Weisskopf, Bush
Endorses Phasing Out CFCs by Year 2000, Wash. Post, Mar. 4, 1989, at A20, col. 1 (stating that
Bush believes 50% reductions called for by Montreal Protocol may not be sufficient).
210. Randal, Conferees Differ on Pace of Ozone Phase-Out,Wash. Post, Mar. 8, 1989, at A30,
col. 1. Immediately following the London Conference, a hastily organized 24 nation environmental summit opened at The Hague. Cody, Another Environmental Summit Opens, Illustrating
Issue's New Currency, Wash. Post, Mar. 11, 1989, at A17, col. 1. The Summit's acknowledged
radical purpose was to promote increased authority of the United Nations to police the global
atmosphere, including the power to impose sanctions on governments found to be in violation of anti-pollution rules the UN body would promulgate. Cody, Global EnvironmentalPower
Sought, Wash. Post, Mar. 12, 1989, at A27, col. 2. In the end, the "Declaration of The Hague"
expressed a more realistic goal:
Developing, within the framework of the United Nations, new institutional authority,
either by strengthening existing institutions or by creating a new institution, which,
in the context of the preservation of the earth's atmosphere, shall be responsible for
combating any further global warming of the atmosphere and shall involve such decision-making procedures as may be effective even if, on occasion, unanimous agreement has not been achieved.
Id.
211. During the 100th Congress, Congress held seven hearings on the subject of global
warming. The Global Environmental Protection Act of 1988: Joint Hearings on S. 2666 Before the
Subcomm. on Hazardous Wastes and Toxic Substances and the Subcomm. on Environmental Protection of
the Senate Comm. on Environment and Public Works, 100th Cong., 2d Sess. (1988); National Energy
Policy Act of 1988 and Global Warming: Hearings Before the Senate Comm. on Energy and Natural
Resources, 100th Cong., 2d Sess. (1988); Technologies for Remediating Global Warming: Hearing
Before the Subcomm. on Natural Resources, Agriculture Research and Environment and the Subcomm. on
Science, Research and Technology of the House Comm. on Science, Space, and Technology, 100th Cong.,
2d Sess. (1988); Greenhouse Effect and Global Climate Change: Hearing Before the Senate Comm. on
Energy and Natural Resources, 100th Cong., 2d Sess. (1988); Greenhouse Effect and Global Climate
Change: Hearings Before the Senate Comm. on Energy and Natural Resources, 100th Cong., 1st Sess.
(1987); The National Climate ProgramAct and Global Climate Change: HearingsBefore the Subcomm.
on Natural Resources, Agriculture Research and Environment and the Subcomm. on InternationalScientific
Cooperation of the House Comm. on Science, Space, and Technology, 100th Cong., 1st Sess. (1987);
StratosphericOzone Depletion: Hearings Before the Subcomm. on NaturalResources, Agriculture Research
and Environment of the House Comm. on Science, Space, and Technology, 100th Cong., Ist Sess.
(1987).
The first session of the 10 1st Congress held at least 11 hearings concerning global warming. Effects of Global Warming: Hearing Before the House Foreign OperationsAppropriationsSubcomm.,
101st Cong., 1st Sess. (1989); National Global Change Research Act of 1989: Hearing on S. 169
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tending that technological and policy options to slow the effects of
global warming are available, but that these options require the
political will to implement them. 2 12 Members of Congress whose
constituents are directly affected should play a leading role in gaining the needed support to halt global warming. For example, farmers who suffered from the drought of 1988 and landowners affected
by rising sea levels are two groups that would benefit directly from
2 13
legislation.
During the summer of 1988, a flurry of legislative activity occurred, culminating with the introduction of several congressional
bills aimed at global warming issues. 2 14 Some of the bills were reintroduced into the 101st Congress, 21 5 and four new bills were introBefore the Senate Commerce Comm., 101st Cong., 1st Sess. (1989); NationalEnergy Policy Act of 1989
(Energy Efficiency and Renewable Energy): Hearing on S. 324 Before the Senate Comm. on Energy and
Natural Resources, 101st Cong., 1st Sess. (1989); Policies to Prevent Global Warming and the Destruction of the Ozone Layer: HearingBefore the EnvironmentalProtection Subcomm. of the Senate Comm. on
Environment and Public Works, 101st Cong., 1st Sess. (1989); Global Climate Changes and Their
Effect on the Oceans: Hearing Before the National Ocean Policy Study Subcomm. of the Senate Commerce,
Science and Transportation Comm., 101st Cong., 1st Sess. (1989); Climatic Changes Caused by Global
Warming: Hearing Before the Science, Technology and Space Subcomm. of the Senate Commerce, Science
and Transportation Comm., 101st Cong., 1st Sess. (1989); Effect of Climatic Change on U.S. Agriculture: Hearings Before the Dep't Operations, Research and Foreign Agriculture Subcomm. and the Forests,
Family Farms and Energy Subcomm. of the House Agriculture Comm., 101st Cong., Ist Sess. (1989);
The InternationalEnvironmentalAgendafor the 101st Congress: HearingBefore the Senate Foreign Relations Comm., 101st Cong., 1st Sess. (1989); Global Climate Change: HearingBefore the Oceanography
Subcomm. of the House MerchantMarine and FisheriesComm., 101st Cong., Ist Sess. (1989); Global
Environmental Issues: HearingBefore the Senate Agriculture,Nutrition and Forestry Comm. and the Foreign Operations Comm. of the Senate Appropriations Comm., 101st Cong., 1st Sess. (1989); Trends in
U.S. Carbon Dioxide Emissions: HearingsBefore the Senate Energy and NaturalResources Comm., 10 1st
Cong., 1st Sess. (1989).
212. See Hearings on S. 2666, supra note 4, at 2 (statement of Sen. Baucus) (remarking that
combatting global warming will require "historic meeting of minds.., to turn heightened
environmental concern into effective global action").
213. See F. GRAD, supra note 192, § 1.02, at 1-12 to 1-17 (stating that regulatory controls
are necessary to protect property interests, including development of crops and livestock,
from effects of pollution).
214. S. 2666, 100th Cong., 2d Sess., 134 CONG. REC. S10281 (1988) (introduced by former Sen. Stafford) (regulating chlorofluorocarbons, carbon dioxide, ground level ozone,
methane, and other pollutants); S. 2667, 100th Cong., 2d Sess., 134 CoNG. REC. S10281
(1988) (introduced by Sen. Wirth) (advocating national energy policy to reduce global warming); S. 2867, 100th Cong., 2d Sess., 134 CONG. REC. S14924 (1988) (introduced by Sen.
Chafee) (establishing national policies and promoting international efforts in resource conservation strategies appropriate to preventing greenhouse effect); H.R. 5460, 100th Cong., 2d
Sess., 134 CONG. REC. H9616 (1988) (introduced by Rep. Schneider) (putting forth 1louse
version of same bill). The legislators were aware that it was unlikely that the hills would pass
before the session closed; nevertheless, they believed it was important to raise these issues
with the expectancy of passing similar legislation in the 101st Congress. Bill Introduced to Control Global Warming with Energy Conservation Goals, DOE Ranking, [19 Current Developments]
Env't Rep. (BNA) 1184 (Oct. 14, 1988).
215. On February 2, 1989, Senator Wirth reintroduced his bill, S. 2667, as S. 324, entitled
the National Energy Policy Act of 1989. S. 324, 101st Cong., 1st Sess., 135 CONG. REc. S1024
(1989). On February 22, 1989, Representative Schneider reintroduced her bill, H.R. 5460, as
H.R. 1078, entitled the Global Warming Prevention Act of 1989. H.R. 1078, 101st Cong., 1st
Sess., 135 CONG. REC. H370 (1989). Senator Stafford, who introduced S. 2666 into the 100th
19891
duced. 2 16
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235
Senator Gore's bill, 21 7 Senator Wirth's bill, 21 8 and
Representative Schneider's bill 21 9 offer three of the more comprehensive pieces of legislation. All three bills seek to reduce greenhouse gas emissions, but differ on the extent of reductions and in
their approaches to the problem.
Senator Gore's bill attacks global warming through the regulation
and phaseout of emissions from man-made substances such as
CFCs, 2 20 methane from landfills and sewage treatment facilities, 22 '
ground level ozone, 22 2 nitrogen oxides, 2 23 hydrocarbons, 224 and vehicle emissions. 2 25 To reduce carbon dioxide emissions, the bill
seeks to employ a series of vehicle fuel efficiency improvements that
include increases in average fuel economy standards, 226 the assessment of a "gas-guzzler" tax against vehicle manufacturers that fail
to comply with fuel economy standards, 2 27 and federal income tax
credits for the purchase of highly fuel-efficient vehicles. 228 Senator
Gore's bill also emphasizes research and development of policy responses, 2 29 as well as the promotion of public awareness of the
global warming phenomenon throughout the 1990s. 2 30
Senator Wirth's bill calls for a twenty percent carbon dioxide reCongress, has retired. Senator Chafee has introduced a bill concerned primarily with ozone
protection. S. 491, 101st Cong., Ist Sess., 135 CONG. REC. S1999 (1989).
216. The new bills are: S. 169, 101st Cong., 1st Sess., 135 CONG. REC. S171 (1989) (introduced by Sen. Hollings) (amending National Science and Technology Policy, Organization,
and Priorities Act of 1976, Pub. L. No. 94-282, 90 Stat. 459, to improve scientific understanding of Earth system and effect of changes in system on climate and human well-being); S. 201,
101st Cong., Ist Sess., 135 CONG. REC. S172 (1989) (introduced by Sen. Gore) (establishing
Council on World Environmental Policy and emission standards); S. 251, 101st Cong., 1st
Sess., 135 CONG. REC. S174 (1989) (introduced by Sen. Moynihan) (creating "Task Force for
Research and Assessment of the Changing Environment"); S. 333, 101st Cong., 1st Sess., 135
CONG. REC. S1024 (1989) (introduced by Sen. Leahy) (calling for action to eliminate and
regulate greenhouse gases).
217. S. 201, 101st Cong., 1st Sess., 135 CONG. REC. S172 (1989).
218. S. 324, 101st Cong., Ist Sess., 135 CONG. REC. S1024 (1989).
219. H.R. 1078, 101st Cong., 1st Sess., 135 CONG. REC. H370 (1989); see also S. 169, 101st
Cong., 1st Sess., 135 CONG. REC. S171 (1989) (providing for improved coordination of national scientific research efforts regarding, among other things, global warming and ozone
depletion).
220. S. 201, 101st Cong., Ist Sess., 135 CONG. REC. S172 §§ 304-312 (1989).
221. Id. § 313.
222. Id. § 314.
223. Id. § 315.
224. Id. § 316.
225. Id. § 317.
226. Id. §§ 403-410. The bill requires standards of 27.5 mpg for vehicles in model years
1985 through 1991, with incremental increases for model years 1993 through 2000. Id.
227. Id. § 412.
228. Id. § 422.
229. Id. § 201.
230. Id. §§ 201-205. To promote public awareness, the bill designates 1990 as the "International Year of the Greenhouse Effect." Id. § 205.
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duction from 1988 levels by the year 2000.231 The bill foresees
achieving this reduction by increasing the efficiency of power plants
using fossil fuels and by reducing the demand for those fuels.2 32 To
implement these measures, the bill seeks to establish a "least-cost
national energy plan," promulgated by the federal government, to
conserve fossil fuels and emphasize renewable energy2 33sources such
as solar, wind, hydroelectric, and geothermal power.
Both Senator Gore's and Senator Wirth's bills recognize the need
for international cooperation through multilateral conventions, pro2 34
tocols, and agreements to reduce emissions of greenhouse gases.
The Gore bill proposes utilization of the United Nations to coordinate action worldwide, 2 35 whereas the Wirth bill envisions a series
of meetings sponsored by the United States and culminating in a
multilateral global climate convention open for signature by
1992.236 Similar in scope to the proposed domestic requirements,
the convention would require a twenty percent global reduction of
carbon dioxide emissions over 1988 levels by the year 2000, and a
231. S. 324, 101st Cong., 1st Sess., § 3, 135 CONG. REC. S1024 (1989).
232. Id. §§ 301-305. To facilitate these measures, the bill provides for the establishment
and financing of energy efficiency research and development projects, and for the establishment of five regional centers that will develop techniques for improving the energy efficiency
of industrial processes . Id.
233. Id. § 301. The bill formulates an energy conservation plan designed to cut energy
use by two to four percent annually. Id. Senator Wirth proposes a $450 million program over
three years to research and develop renewable energy sources. Id. § 601. As examples of the
benefits energy conservation and renewable energy sources can achieve, see National Energy
Policy Act of 1989 (Energy Efficiency and Renewable Energy): Hearing on S. 324 Before the Senate
Comm. on Energy and Natural Resources, 101st Cong., 1st Sess. 492 (1989) (testimony of the
American Ass'n of Nurserymen) (stating that nation's carbon dioxide emissions can be reduced by 18 million tons annually by filling 100 million planting sites with trees, thereby
saving consumers $4 billion in annual energy costs). See also id. at 498 (statement of Thomas
0. Gray, Executive Director, American Wind Energy Ass'n) (noting that wind powered electric turbines could supply up to one trillion kilowatts of electricity per year-equal to approximately 40% of current national consumption).
234. S. 201, 101st Cong., 1st Sess. §§ 1001-1002, 135 CONG. REC. S172 (1989); S. 324,
101st Cong., 1st Sess. §§ 1401-1407, 135 CONG. REC. S1024 (1989). The UNEP Conference
on the Changing Atmosphere, recognized that policies governing international environmental law are already in place and include: the Trail Smelter arbitration of 1935 and 1938,
Principle 21 of the 1972 Declaration of the UN Conference on the Environment, the Economic Commission for Europe Convention on Long Range Transboundary Air Pollution and
its Protocol (Helsinki, 1985) for sulphur reductions, Part XII of the Law of the Sea Convention, and the Vienna Convention for Protection of the Ozone Layer and its Montreal Protocol
(1987). Changing Atmosphere, supra note 37, at 8; see generally Johnston, Systemic Environmental
Damage: The Challenge to InternationalLaw and Organization, 12 SYR. J. INT'L L. & Cohi. 255
(1985) (exploring possibilities for applying international law to environmental problems).
235. S. 201, 101st Cong., 1st Sess. § 1002, 135 CONG. REC. S172 (1989). The bill authorizes the President to request the UN to establish an agency to address international global
warming concerns and to establish a program that would halt deforestation and encourage
global reforestation. Id.
236. S. 324, 101st Cong., Ist Sess. § 1401, 135 CONG. REC. S1024 (1989). Senator
Wirth's bill encourages UNEP and the World Meteorological Organization (WMO) to monitor yearly generation of greenhouse gases on a country-by-country basis. Id. § 1405.
1989]
TURNING DOWN THE HEAT
237
fifty percent reduction by 2015.237 In addition, the Wirth bill relies
substantially on nuclear power, authorizing as much as $500 million
for research, development, and demonstration of technologies for
8
new, safe, and cost-efficient nuclear reactors. 23
Representative Schneider's bill attempts to curb energy consumption through conservation strategies aimed at reducing carbon dioxide emissions. 2 39 Proponents of the bill maintain that energy
efficiency has been overlooked as a means of minimizing the threat
of global warming. 2 40 Their research shows that the United States
could save more than $200 billion per year in energy costs by investing in efficiency enhancing technologies. 24 1 The bill advocates the
use of efficiency technologies that are two to five times less costly
than conventional fossil and nuclear resource options, yet are capable of maintaining robust economic growth. 24 2 Primary goals under
the bill include a twenty percent reduction of 1988 carbon dioxide
emissions levels in the United States by the year 2000 and an international global agreement on the atmosphere by 1992; the interna237. Id. § 1401. The bill envisions the establishment of a special office under the auspices
of UNEP and WMO that would be responsible for assisting global negotiations and ultimately
administering a global protocol. Id. § 1405.
238. S. 324, 101st Cong., Ist Sess. § 703, 135 CONG. REC. S1024 (1989). Nuclear reactors
emit no greenhouse gases. See Hearingson Energy and Natural Resources, supra note 2, at 384-85
(testimony of Dr. Irving Mintzer) (explaining why nuclear power is unlikely to substantially
replace fossil fuels in time to offset significantly greenhouse effect). Problems concerning
their safety, however, along with the prohibitive costs of producing nuclear power would have
to be overcome before the nuclear option could be considered as a viable alternative to fossil
fuels. Id.
239. H.R. 1078, 101st Cong., 1st Sess. § 2, 135 CONG. REC. H370 (1989). As the Schneider bill states, "[t]he primary purpose of this Act is to establish national energy and resource
policies that do not compromise public health and safety or environmental quality, and will
achieve, in a cost-minimizing manner, at least a 20% reduction in 1988 carbon dioxide levels
by 2000 and elimination of all greenhouse aerosols identified in the Montreal Protocol within
five to seven years from the date of enactment of this Act." Id. § 2(b)(1).
The bill proposes establishment of an Office of Recycling Research and Information within
the Department of Commerce; the Office would promote recyclable materials programs, and
report on the nation's progress in using recyclable materials. Id. § 1207. The need for such
programs is based on statistics that show if the United States increased its recycling rate by
10% over the 1992 level, and 30% over the 2008 level, the nation could save $30 billion and
seven "quads" of energy. Id. § 1201; see also Rader, PowerForecast: Sunny, Breezy, Wet, Wash.
Post, July 23, 1989, at D3, col. 1 (noting that quad equals quadrillion Btus and that U.S.
energy production in 1988 was 69 quads, while total consumption, including imports, was 83
quads in 1988). Toward that end, the bill would ban production or sale of certain designated
nonrecyclable consumer goods. H.R. 1078, supra, § 1208.
240. See 134 CONG. REC. E3263 (daily ed. Oct. 6, 1988) (statement of Rep. Schneider)
(noting that over past 15 years investments in energy efficiency have cut energy use by onethird).
241. Id. Rep. Schneider notes that reduced concentrations of greenhouse gas emissions
would be a "derivative, cost-free benefit of the efficiency improvements." Id.
242. Id. The United States lags behind other affluent western nations in terms of energy
efficiency. See Wald, supra note 44 (stating that in West Germany energy consumption is only
half of that in United States and thatJapan spends five percent of its GNP on energy, whereas
United States spends ten percent).
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tional agreement would set a goal of a twenty percent reduction of
1988 carbon dioxide levels worldwide by 2000, and periodic reviews
of the need for and the possibility of achieving further reductions
beyond 2000.243
A survey of these bills reveals their unanimity in direction and
outlook. All the bills focus on energy efficiency and renewable energy sources as the primary ways in which to curb global warming.
As the next logical step, Congress must undertake a coordinated
legislative effort. Members of Congress who have introduced or
sponsored the various pieces of legislation addressing global warming should implement a single piece of comprehensive legislation. 244 Such legislation would pose a formidable tool with which
the United States can begin to commit necessary public and private
resources.
CONCLUSION
Current legislation may be used to fight global warming. The differing objectives of the NEPA and the CAA, however, render them
less effective than a single piece of legislation aimed specifically at
curbing the greenhouse effect. Indeed, the sheer scope of actions
required demonstrates the necessity and superiority of passing such
legislation-global warming demands the immediate and determined attention of this country. As the following statement of the
World Conference on the Changing Atmosphere warns: "Humanity
is conducting an unintended, uncontrolled, globally pervasive experiment whose ultimate consequences could be second only to a
global nuclear war." 24 5 Indeed, domestic and international action
may require a concentrated effort along the lines of a "Manhattan
Project" to tackle the immensities of the global warming problem.
Nevertheless, society must act quickly-this problem not only
threatens future generations in the abstract but also jeopardizes the
lives of our own children.
243. H.R. 1078, 101st Cong., ist Sess. § 3, 135 CONG. REC. H370 (1989).
244. The number of Senators who introduced or sponsored global warming legislation
during the 101st Congress exceeded one-third of the Senate. See S. 169, 101st Cong., 1st
Sess., 135 CONG. REC. S171 (1989); S. 201, 101st Cong., Ist Sess., 135 CONG. REC. S172
(1989); S.251, 101st Cong., 1st Sess., 135 CONG. REC. S174 (1989); S. 324, 101st Cong., 1st
Sess., 135 CONG. REC. S1024 (1989); S. 333, 101st Cong., 1st Sess., 135 CONG. REC. S1024
(1989); S.491, 101st Cong., 1st Sess., 135 CONG. REC. S1999 (1989).
245. Changing Atmosphere, supra note 37, at 1.