The Clean Air Act and Space Tourism: A Case Study in the Ambiguous Standards for Resolving Statutory Conflict
With the acceleration of man-made global warming, environmental regulatory frameworks have come under severe scrutiny for not tackling climate issues with enough urgency. The advent of space tourism presents even greater challenges, since environmental regulations must now encompass innovations they were never intended to govern. At the center of this ambiguity is the Clean Air Act (CAA), the landmark 1970 law responsible for regulating U.S. atmospheric pollutants. The CAA laid the groundwork for the Environmental Protection Agency (EPA) to establish air quality standards for a variety of pollutants, including particles whose environmental implications were discovered after the law’s passage. Notably, the CAA does not explicitly regulate any emissions sources, but rather establishes different standards based on the classification of the emission source as either stationary or mobile. [1] However, the growing space tourism industry raises new concerns about the CAA’s regulatory prowess, because space rockets exhibit characteristics of both mobile sources (lower emissions standards) and stationary sources (higher emissions standards). Yet, the CAA does not include a resolution for potential mobile-stationary source classification overlap. [2] Given that technology moguls such as Richard Branson intend to expand space tourism thirty-fold in the next decade, space tourism has the potential to become one of the main contributors to greenhouse gas emissions in the near future. Hence, the classification of rockets as mobile or stationary is incredibly consequential. [3]
The CAA broadly defines mobile sources as “on-road motor vehicle engines and off-road vehicles and engines,” including a variety of ground and aviation vehicles. [4] Clearly, a rocket is analogous to an airplane or helicopter while it is traveling through the atmosphere; therefore, it would appear that rockets should be regulated as mobile sources of emissions. However, the airborne period comprises only a short amount of the rocket’s lifespan. Unlike other aircrafts, most rockets spend the majority of their lifespan—and time spent emitting—as a stationary source of emissions in a fashion analogous to a factory. [5] The classification of rockets as stationary seems especially justified upon considering that the rocket’s service structure launchpad remains stationary during the flight, and that the rocket emits at its highest rate while attached to the platform immediately prior to and following liftoff. There is neither a resolution strategy in the CAA nor any relevant legal precedents that would allow courts to easily adjudicate the ambiguity. [6] Thus, courts should establish a new practice for resolving this statutory conflict, since the existing practices do not apply, which extends the principles underlying current precedent. This precedent would apply to environmental law disputes regarding rocket emissions and classify in favor of the stricter standard when two or more provisions are met.
Nonetheless, other existing legal recourses should be explored before U.S. courts overhaul the environmental statutory regime. One potential way to resolve the dispute over classifying rocket emissions is simple deference to the EPA, a principle known as Chevron deference, established by the landmark 1984 U.S. Supreme Court case Chevron v. Natural Resources Defense Council. In Chevron, EPA had promulgated a new regulation under the CAA, allowing polluters to alter stationary sources of emissions without a permit from the respective state if the modification did not increase emissions. The National Resources Defense Council challenged this provision, claiming that the CAA required states to issue a new permit for any modifications to stationary emissions sources. Ultimately, the Supreme Court upheld the EPA’s interpretation, arguing that the agency had discretion over ambiguous statutory language. [7] In the case of rocket emissions, a 2000 EPA Statement affirmed that rockets constitute a mobile source of emission, thus assuring investors that private rocket launches would not be subjected to the stringent limits of stationary sources, which indicates that the agency believes it has the authority to classify emissions sources under the CAA. [8]
However, a subsequent Supreme Court ruling in King v. Burwell (2015) casts doubt on the use of Chevron deference in the case of rocket emissions. In King, the Supreme Court established that the agency does not have full discretion over statutory interpretation if a statute addresses “major questions” of political or economic significance. Chief Justice John Roberts wrote for the majority that, in addition to representing a transition of power from the legislative to the executive branch, granting federal agencies discretion over interpretation could lead to a change in interpretation under subsequent administrations—a change that is exceedingly likely for issues of economic or political significance. [9] Rocket emissions with the potential to affect atmospheric temperature and ozone composition are a contentious issue deeply intertwined with the politics of climate change and the class issues of space tourism. Regulating such emissions would therefore address a “major question” of political and economic significance. Thus, according to the ruling in King, regulating such emissions would not be under the jurisdiction of the EPA.
An alternative method to resolve the mobile and stationary source conflict would be to take a cautious approach and resolve in favor of the defendant—i.e., the greenhouse gas emitter. The Supreme Court established such a principle, known as the “rule of lenity,” in the landmark 1820 case United States v. Wiltberger. After a worker was killed on an American merchant vessel traversing the Tigris River in China, the U.S. government maintained that the reference to “high seas” with regard to a maritime wrongful death provision also encompassed freshwater rivers. [10] The Marshall Court, however, held that resolving this type of ambiguity necessitated the criminal statute to be interpreted in the strictest possible sense to protect the defendant’s freedom. [11] In Wiltberger, this meant interpreting “high seas” strictly as saltwater oceanic bodies—not including freshwater rivers—to favor the defendant’s interests. Further, defaulting to a strict interpretation of existing legislation incentivizes Congress to be precise about statutory language and prevents the judiciary from usurping the legislature’s exclusive right to define offenses. Crucially, as Supreme Court Justice Sandra Day O’Connor articulated in her dissenting opinion for Dixson v. United States (1984), the rule of lenity avoids the risk of an individual not knowing that their action represents a violation of criminal law and limiting freedom beyond Congress’ express intent. [12] Thus, the purpose of the rule of lenity is for the judicial interpretation to minimize threats to individual liberty under the law.
In the case of space rockets, the rule of lenity would result in the classification of rockets as mobile sources of emissions, as this requires substantially fewer permits and lower emissions standards, and would therefore be in the interest of the defendant. [13] Nevertheless, it is far from clear whether the rule of lenity would even apply in this case. On one hand, in WEC Carolina Energy Sols v. Miller (2013), the Fourth Circuit Court of Appeals extended the rule of lenity to civil cases where the statute in question also has criminal provisions. [14] Thus, since the CAA contains criminal provisions related to the emissions source provisions, the rule of lenity could be applied to disputes under the CAA. On the other hand, the rule of lenity may not apply to the CAA if the court considers the nature of the violation a “public welfare” offense. In Liparota v. United States, the federal government alleged that a restaurant owner committed fraud under the Food Stamp Act (FSA); according to the federal prosecutor’s interpretation, the FSA’s language suggested that the government only needed to prove the defendant knowingly acquired the food stamps. [15] However, the petitioner argued that the language of the FSA suggested that it had to be proven the offender knowingly violated the law, a much stricter interpretation of the FSA. [16]
The Supreme Court found the statutory language sufficiently ambiguous to invoke the rule of lenity. Nonetheless, it did provide a framework for so-called “public welfare” offenses, a type of conduct that a reasonable person should know is subject to stringent public regulation because it may seriously threaten the community’s health or safety, for which the rule would not apply. If an act constitutes a “public welfare” offense, it follows that the defendant knowingly committed the offense and need not be afforded the rule of lenity. Rocket emissions that have contributed to already staggering levels of global warming could easily be classified as a “public welfare” offense; therefore, it is unclear as to whether the rule of lenity would apply to the conflict over the classification of rockets. Given the conflicting precedents over the use of the rule of lenity, the rule itself is ambiguous and cannot be a sustainable resolution to this dispute. [17]
Since neither the rule of lenity nor any other current statutory reconciliation standard provides a complete resolution for the classification of rocket emissions, U.S. courts must introduce a new standard unique to environmental statutory conflict. However, given that the rule of lenity remains the most widely used standard for resolving statutory conflict, the courts should adopt a new standard that follows its ethos. The key purpose of the rule of lenity is to take on as little risk to individual liberty as possible. In the case of environmental crimes, however, the risk is more to society at large, whose health and economic future may be impacted by emissions, rather than to any possible infringement of freedom for already opulent corporate tycoons. Thus, to err on the side of caution, US courts should resolve towards the stricter standard when two or more statutory provisions are met. In this case, courts should classify rockets as primarily “stationary sources” of emissions and require strict emissions permits under Title V of the CAA.
Even though its effect will often be the opposite of what applying the rule of lenity would yield, this new stringent standard is the logical complement of the rule of lenity for environmental crimes as it aims to minimize risk—albeit to society rather than individuals. Furthermore, this resolution of the statutory ambiguity fits the express intent of environmental regulation, including the CAA, as environmental legislation is tasked with governing a multitude of technologies, including ones that did not exist at the time of its creation. Thus, the intent of the CAA and other environmental regulations is not for a strict construction of the law but a flexible one that minimizes environmental risk. By adopting this rule for resolving environmental statutory disputes to cases attempting to classify rockets as a mobile or stationary sources of emissions, U.S. courts will rule in a way that paves the way for other new technologies to be regulated, while keeping in mind the original intent of existing environmental frameworks.
Edited by Radhika Goyal
Sources:
[1] Environmental Protection Agency, Clean Air Act Overview, Environmental Protection Agency (2020), online at https://www.epa.gov/clean-air-act-overview (visited November 15, 2021).
[2] Ashima Talwar, “One Small Step for the EPA, One Giant Leap for the Environment: A Hybrid Proposal for Regulating Rocket Emissions Due to the Rising Commercial Space Industry,” 9 2 George Washington Journal of Energy and Environmental Law 87, 91 (2018).
[3] Teresa Pultarova, The rise of space tourism could affect Earth’s climate in unexpected ways, scientists worry, Space (2021), online at https://www.space.com/environmental-impact-space-tourism-flights (visited November 15, 2021).
[4] Environmental Protection Agency, Clean Air Act Overview, Environmental Protection Agency (1970), online at https://www.epa.gov/clean-air-act-overview/clean-air-act-text
(visited November 15, 2021).
[5] Talwar, “One Small Step for the EPA,” 94.
[6] David Romantz, “Reconstructing the Rule of Lenity,” 42 Cardozo Law Review (2018), 524.
[7] Chevron v. National Resources Defense Corp., 467 U.S. 837, (U.S.S.C 1984).
[8] Environmental Protection Agency, Are Emissions From Rocket Launching Fugitive, Mobile Source Emissions, or Non Fugitive Stationary Source Emissions, Environmental Protection Agency (2000), online at https://www.epa.gov/title-v-operating-permits/are-emissions-rocket-launching-fugitive-mobile-source-emissions-or (visited November 15, 2021).
[9] Talwar, “One Small Step for the EPA,” 92.
[10] United States v. Wiltberger, 18 U.S. 76, 95 (U.S.S.C 1820).
[11] Ibid.
[12] Rachel Karas, “Chevron Takes Backseat To Other Precedents in King Ruling,” 18 26 Inside CMS 6, 7 (2015).
[13] Romantz, “Reconstructing the Rule of Lenity,” 524.
[14] Kristin Hickman, “Of Lenity, Chevron, and KPMG,” 26 Virginia Tax Review 967 (2007).
[15] David Fillipi, “Unleashing the Rule of Lenity: Environmental Enforcers Beware,” 26 3 Lewis and Clark Law School 923, 923-949 (1996).
[16] Ibid at 937.
[17] Ibid at 925.