enforce the one-hour standard," said Flannery. "We are going to be pressing as hard as we can" on this issue. EPA officials prefer to put an optimistic face on the legal wrangling, saying that all but a few state plans to reduce NOx are close to completion, Clark said. The agency's program to control PM2 5 does not appear to be in jeopardy as a result of the court's order. As many as 1000 air monitors will be installed on schedule to collect fine particulate data, and the first state implementation plans for the control of fine PM are not due to EPA until 2006, Clark said. However, the court's reliance on the nondelegation doctrine, a decades-old theory stating that
Congress may not delegate its lawmaking authority to another body, including an agency, could open the door to industry-sponsored petitions challenging how EPA interpreted a number of laws, attorneys said. The judges criticized the agency for interpreting the air act too broadly—in effect, developing new law—and overstepping its authority. Under this doctrine, the expansion of chemical reporting requirements under TRI is ripe for challenge, said Jonathan Cannon, former EPA General Counsel and now with the Washington, D.C., office of the law firm Beveridge & Diamond. "In the wetlands program there just isn't any guidance from Congress, and one thing you have to determine is
whether Congress intended to authorize the wetiands program to begin with," added C. Boyden Gray, with the law firm Wilmer, Cutler, & Pickering in Washington, D.C. The panel ignored 64 years of legal decisions that have supported a broad delegation of authority from Congress to the agencies, said several attorneys for environmental groups. More specifically, "The Clean Air Act and legislative history offer more than ample guidance to satisfy" the court's concern over EPA's authority to interpret the law, said Howard Fox, counsel to the American Lung Association in Washington, D.C, which filed its own appeal of the May 14 order. —CATHERINE M. COONEY
Climate change meeting skirts decisions on emissions trading Disagreements between European Union (EU) and U.S. officials over exactly how to cut greenhouse gas emissions have been left to simmer following a two-week international meeting held in Bonn earlier this summer. The Kyoto Protocol, agreed to in December 1997, requires the EU to cut emissions by 8%, the United States by 7%, and Japan by 6%, from their 1990 levels by 2008-2012. One of the key Protocol components was to allow the possibility of emissions trading, a mechanism that allows developed countries to offset their emissions against reductions made in developing countries. Without this program, U.S. officials would not have agreed to the Protocol. Last year, however, the EU proposed capping the degree to which developed nations can offset their commitments against flexible mechanisms, including emissions trading and carbon sink activities. A ceiling of 50% was set for most nations but with much lower caps of 25% for the United States and 33% for Australia. The EU proposal brought an outraged response from several countries' officials who were counting on implementing flexible mechanisms to meet their Kyoto targets. Capping would prevent countries with surplus emission
"Hot air" emission cuts from economic decline could foil Protocol's targets.
allowances, known as "hot air," from trading in emissions futures with developed countries, the EU delegates said. Russia, for example, has millions of tons of hot air, resulting from significantly reduced emissions levels since the collapse of the Soviet Union and the decline of industry. There are ways to exclude too much hot air trading. At the Royal Institute of International Affairs meeting in London that followed on the heels of the Bonn conference, many delegates heard proposals for addressing hot air. For instance, there should be the mechanism to apply charges to international emission transfers, with the revenue generated going toward disaster relief, providing assistance to developing countries in adapting to climate change, and the development of
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new, environmentally friendly technologies. The issue of trading did not, however, dominate the talks, as had been the concern of United Nations Climate Convention's Executive Secretary Michael Zammit Cutajar. By the end, it had been agreed that a "synthesis" of national positions on implementation and compliance could be put forward to the next Conference of Parties (COP-5), also to be held in Bonn, in October. Nonetheless, the issue of emissions trading is likely to remain high on the negotiators' agenda, as they move to complete an agreement on the principles and objectives of the mechanisms by the COP-6 meeting, scheduled for late 2000 at The Hague. Governments that have signed the Protocol have until 2005 to craft concrete proposals as to how they will achieve their overall emission cuts. "It is important to take into account that the Europeans know that the U.S. Senate will not ratify the Protocol if there are considerable restrictions on emissions trading. I would guess that the Europeans will be somewhat flexible in the ongoing negotiations," said climate expert Bjart Holtsmark of the Center for International Climate and Environmental Research in Oslo, Norway. —DAVID BRADLEY
