In Congressional testimony last month, EPA Administrator Lisa Jackson apparently told Congress that amendments to the CAA may be necessary in order to ensure that any revised CAIR rule issued by EPA would be safe from legal challenge. The testimony is not really a surprise. Anyone reading the decision striking down the original CAIR rule would understand that the Court had concluded that the cap-and-trade program promulgated under CAIR was not authorized by the CAA.
Like the situation posed by EPA’s obligation to address climate change endangerment following the Supreme Court decision in Massachusetts v. EPA, the threat of further litigation and court mandates may be the best hope of getting something done. EPA is expected to issue a new rule in 2010 and if the agency does not have legislative authority for a cap-and-trade program, then we’re going to see a command-and-control rule. The unattractiveness of that possibility may be what’s necessary to get the legislation sought by EPA.