Global climate change and us environmental law power point presentation final+ 12-16-13

Global Climate Change
and US Environmental Law
Johns Hopkins University Nanjing Center
3-4 March 2012
updated for presentation at the
Indian Institute of Technology, Indore
16 December 2013

Samuel A. Bleicher
Adjunct Professor, Georgetown University Law School
J.D., Harvard Law School
Principal, The Strategic Path LLC
SamBleicher@StrategicPathLLC.com
www.StrategicPathLLC.com

“An Inconvenient Truth”

2

OUTLINE
I.

Effects of Global Climate Change

II.

Causes of Global Climate Change

III.

Sources of GHG Emissions

IV.

Controlling GHG Emissions

V.

New Regulations Around the World

VI.

US Congressional Action on GHGs

VII.

EPA Authority to Regulate GHG Under the CAA

VIII.

Massachusetts v. EPA, 200 US 321 (2007)

IX.

EPA Action 2008 –

X.

Presidential Action 2009 –
3

I. Effects of Global Climate Change
Consequences of Increased GHG

The 5 most adverse effects of global warming:
1. Polar ice caps melting, creating several dangers:
 Rising sea levels. As all glaciers melt, the seas would rise
about 230 feet (70 meters) - sea levels will rise continuously
 Accelerated global warming. As white ice caps shrink, the
ocean will reflect less light and heat, reducing the Earth’s
albedo. Melting ice caps also release trapped CH4
 Ecological disruption. Melting ice caps release fresh water,
making the ocean less salty. Desalinization will change ocean
currents, which regulate temperatures, and damage sea life
 Higher Arctic Circle temperatures. The increase will
destroy the habitat of several species of animals
2. Spread of disease. As northern countries warm, disease-carrying
insects and microbes migrate north, bringing plague and disease
with them

4

Consequences of Increases in GHG (continued):
3. More hurricanes/monsoons and more frequent and serious
flooding. Warmer ocean waters increase the frequency and
strength hurricanes (monsoons)
4. Increased droughts and heat waves. Some areas of Earth will
become wetter; other areas will suffer more droughts and heat
waves. Africa will suffer most, then Europe, from these conditions
5. Economic and political disruption. Rapid climate changes will
cause more crop failures, storm damage, disease, and mass
relocations, probably resulting in conflicts over land and resources
See http://www.environmentalgraffiti.com/sciencetech/5-deadliest-effects-of-globalwarming/276; http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf

5

“Runaway Climate Change” – 1. Natural Acceleration

 As the earth’s temperature rises, other factors are accelerating the
warming process:
 Shrinking polar ice caps and mountain snow cover cause the
earth’s albedo to decline, so more heat remains in the earth and
atmosphere
 Warmer ocean water absorbs less CO2, so the ocean’s normal
function of taking CO2 out of the atmosphere is reduced
http://www.nature.com/nclimate/journal/vaop/ncurrent/full/nclimate2060.html

 Although increased temperatures also cause some mitigating
effects - for example, expanding deserts reflect more light, and
higher temperatures mean more evaporation which causes
increased cloud cover – these effects are not enough to offset the
accelerating increase in temperatures

6

“Runaway Climate Change” – 2. Methane in permafrost

―Experts have long known that northern lands were a storehouse of
frozen carbon, locked up in the form of leaves, roots and other
organic matter trapped in icy soil — a mix that, when thawed, can
produce CH4 and CO2. But they have been stunned in recent years to
realize just how much organic debris is there. A recent estimate
suggests that the frozen ground known as permafrost contains twice
as much carbon as the entire atmosphere.
―Temperatures are warming across much of that region. Some
permafrost has already thawed. An especially worrisome possibility is
that a significant proportion will emerge not as CO2, but as CH4,
produced when the breakdown occurs in lakes or wetlands. . . . The
potential for large new CH4 emissions in the Arctic is one of the
biggest wild cards in climate science.
(continued on next slide)
7

―Preliminary computer analyses, made only recently, suggest that the
Arctic and sub-Arctic regions could eventually become an annual
source of carbon equal to 15 percent or so of today’s yearly emissions
from human activities. But those calculations were deliberately
cautious.
―A recent survey asked 41 permafrost scientists to offer more informal
projections. They estimated that if human fossil-fuel burning remained
high and the planet warmed sharply, the gases from permafrost could
eventually equal 35 percent of today’s annual human emissions.
―In the minds of most experts, the chief worry is not that the carbon in
the permafrost will break down quickly — typical estimates say that
will take more than a century, perhaps several — but that once the
decomposition starts, it will be impossible to stop.‖
http://www.nytimes.com/2011/12/17/science/earth/warming-arctic-permafrost-fuelsclimate-change-worries.html?hp

8


Katey M. Walter Anthony, a scientist, investigating a plume of methane, a greenhouse gas, at an
Alaskan lake. Dr. Walter Anthony is a leading researcher in studying the escape of methane.

9

II. Causes of Global Climate Change
The Role of GHG in the Atmosphere
 Our planet’s climate is determined by the balance among a wide
variety of factors and processes –
 Ice, snow, deserts, forests, clouds, and oceans reflect varying
amounts of sunlight, determining the earth’s overall reflectivity its albedo.
 Certain gasses in the atmosphere, ―greenhouse gasses‖ (GHG),
absorb solar energy and turn it into heat. Primary GHGs are
carbon dioxide (CO2), methane (CH4), and nitrous oxide (N2O)
 Plants take in CO2 , humans and animals give out CO2; cows
and other ruminant animals produce CO2 and CH4; oceans
absorb CO2; dead plant materials release CO2 and CH 4
 During the dinosaur era, the earth was much warmer than it has
been for many millions of years since. In part our cooler climate
resulted from the entrapment of vast quantities of plant material,
which became oil and coal instead of releasing CO2
10

Increasing GHG in the Atmosphere
 Over the past 200 years, humans have vastly increased the use of
coal and oil as fuels. The extraction and burning of these fuels
releases large additional quantities of GHGs into the atmosphere.
 In 2011 the concentrations of CO2, CH4, and N2O were 391 ppm,
1803 ppb, and 324 ppb, which exceeds the pre-industrial levels by
about 40%, 150%, and 20%, respectively
 Unlike particulates and photo-chemical smog, most GHGs stay in
the atmosphere for periods ranging from decades to hundreds or
thousands of years
 These human-caused emissions are already changing Earth’s
climate. These changes will continue for centuries even if humans
completely stop adding GHG to the atmosphere today
IPCC Fifth Assessment Report November 2013 http://www.ipcc.ch/
11

Increasing CO2 in the Atmosphere

 This chart shows the concentration of CO2 in the atmosphere
over the past 1,200 years. Concentrations were stable at
around 280 ppm until humans began using fossil fuels
 Since then levels have increased by 28%: 280 ppm to 360 ppm

12

Human-caused GHG Emissions

13

Cumulative Character of CO2 (and other GHGs)

14

Cumulative Effects of CO2
 The two most important characteristics of a GHG are how
efficiently the gas absorbs energy and how long the
gas stays in the atmosphere
 Carbon dioxide emissions cause changes in atmospheric
CO2 concentrations that can persist for hundreds or
thousands of years
 The Global Warming Potential (GWP) for a gas is a
measure of the total energy that a gas absorbs over a
particular period of time (usually ~100 years), compared
to carbon dioxide (CO2)

15

Other GHGs
 Methane (CH4) has a Global Warming Potential (GWP) more than
20 times higher than CO2 for a 100-year time scale. CH4 lasts for
only about a decade in the atmosphere. However, on a pound-forpound basis, CH4 absorbs far more energy than CO2, making its
GWP higher
Recent studies indicate that methane released from oil and gas
drilling in the US is several times larger than previously estimated.
The significance of this fact may be positive, rather than negative
http://www.nytimes.com/2013/11/26/us/emissions-of-methane-in-us-exceedestimates-study-finds.html?_r=0

Large quantities of carbon are currently locked into the Arctic and
Antarctic permafrost. A significant proportion may emerge as CH4,
produced when the breakdown occurs in lakes or wetlands, rather
than CO2 (More detail below on this problem)
16

Other GHGs (continued)
 Nitrous oxide (N2O) has a GWP 300 times that of CO2 for a
100-year timescale. Nitrous oxide emitted today remains in
the atmosphere for more than 100 years, on average.
http://www.epa.gov/climatechange/science/causes.html
 Chlorofluorocarbons (CFCs), hydrofluorocarbons (HFCs),
hydrochlorofluorocarbons (HCFCs), perfluorocarbons (PFCs),
and sulfur hexafluoride (SF6) also trap substantially more
heat than CO2. Some HFCs remain in the atmosphere for only
a few years, but SF6 can remain in the atmosphere for
thousands of years.
http://www.epa.gov/climatechange/science/causes.html

 Reductions in emissions of these fluorocarbons pursuant to
the multilateral treaty to phase out HFCs may explain the
―pause‖ in temperature increases in the 1990s.
http://www.bbc.co.uk/news/science-environment-24874060

17

Cumulative Character of CO2 (and other GHGs)
 How big is the bathtub? The November 2013 IPCC Report
says about 531 BMt of CO2 have been emitted by human
activities since 1750. It estimates that capping total GHG
output at 840 BMt gives a 50% chance of staying within
the 2o C increase target.
 That leaves enough capacity in the atmosphere for 309 BMt
of CO2 - about 22 years of emissions - to prevent
runaway climate change.

18

III. Sources of GHG Emissions
Sources of CO2 Emissions by Country
2009 Country & State Rank for Gross Domestic Product (GDP)
Overall Rank by Country
Rank by US State or Country

GDP (in millions of USD)

World
1
2
3
4
5
6
7
8
9
10

58,133,309
1
2
3
4

European Union

16,374,529
United States
14,119,000
Japan
5,068,996
People's Republic of China
4,985,461
Germany
3,330,032
France
2,649,390
United Kingdom
2,174,530
Italy
2,112,780
California
1,911,822
5 Brazil
1,573,409
Spain
1,460,250
6 Canada
1,336,068

[This page 74.8%]

43,457,463
19

III. Sources of CO2 Emissions
Sources of CO2 Emissions by Country
2009 Country & State Rank for GDP
11
7
India
1,310,171
12
8
Russia
1,231,893
Texas
1,158,194
New York
1,078,161
13
9 Australia
924,843
14
10 Mexico
874,902
15
11 South Korea
832,512
16
Netherlands
792,128
Florida
734,727
Illinois
627,952
17
12 Turkey
617,099
Pennsylvania
549,565
18
13 Indonesia
540,277
19
14 Switzerland
500,260
New Jersey
480,641
Ohio
472,344
20
Belgium
468,522

page 2

This page:
6,831,957; 11.8%

Both pages:
50,289,420; 86.6%
20

Growth in Sources CO2 Emissions by Country
Country Rank for GHG Emissions (billion metric tons)
Annual 2010
MtCO2e %
World
China

43,967 100.0

Growth*
1999-2005
28.3 %

GHG/capita Cumulative*
2010
1850- 2005
6.5

1,169,100

10,386

23.3

128.9

7.8

94,300

United States 6,867

15.4

19.9

22.2

324,900

EU [27]

4,918

11.0

4.8

9.8

284,800

Russia

2,326

5.2

-29.6

16.3

92,500

India

2,326

5.2

92.6

1.9

28,600

Japan

1,299

2.9

14.8

10.2

46,100

Canada

727

1.6

27.5

21.3

23,800

Iran

727

1.6

142.3

9.8

8,600

Mexico

688

1.5

33.9

5.8

12,500

South Korea

678

1.5

97.6

13.7

9,000

* World Bank, World Development Report 2010 p.362
http://www.wri.org/our-work/project/cait-climate-data-explorer

21

Allocation of the Effects of GHG to
Sources of GHG Emissions
 GHG emissions do not correlate directly with GDP – trade
and finance do not cause much GHG emissions compared to
making steel or electricity or petroleum products (EU vs. China)
 Damage from GHG emissions is not always where the
emissions occur. Long, urbanized coasts will suffer from rising
sea level; central Africa will suffer more severe droughts
 Benefit from GHG emissions is not always where the
emissions occur. For example: 28% of China's 2004 emissions
went into exports rather than goods for internal consumption –
as argument for consumption-based accounting http://legalplanet.org/2013/11/25/passing-gas/

 Current per person emissions are far less in China and India
than in the US – but emissions growth is much more rapid.
Per person emissions in Chinese cities may be higher than in the
US because of reliance on coal, energy inefficiency, and exports
22


Energy Consumption and Inefficiency - US
[Sources of energy]

[Wasted energy 57.8%]
[Grey is wasted energy]
[Uses]

[Used energy 42.2%]

https://www.llnl.gov/news/newsreleases/2010/images/energy-flow-annotated.pdf

23

Energy Consumption and Inefficiency - China
 China’s energy generation and consumption per unit of GDP can
be substantially reduced if an aggressive but economically
reasonable set of efficiency programs is adopted
 The effect would be an emissions level 50% lower than the
baseline projection by 2030
 It would also substantially reduce China’s projected 2030 imports
of oil and coal
 Most of the benefits of this effort depend on rapid action to
initiate these programs – a 10-year delay will seriously
compromise the outcome
 Even with such a program, China’s GHG emissions will be 10%
higher than in 2005
http://www.mckinsey.com/locations/greaterchina/mckonchina/reports/china_
green_revolution_report.pdf April 2009

24

IV. Controlling GHG Emissions
Sector Reductions Needed to Meet GHG Targets
 Sector reductions to limit global temperature increase to below
2˚ C during 21st century (based on results from Bridging the
Emissions Gap Report, 2011) :



Power sector

(2.2 – 3.9 GtCO₂e)



Transport**

(1.7 – 2.5 GtCO₂e)



Buildings

(1.4 – 2.9 GtCO₂e)



Forestry

(1.3 – 4.2 GtCO₂e)



Agriculture

(1.1 – 4.3 GtCO₂e)



Waste

(about 0.8 GtCO₂e)

** including shipping and aviation Industry (1.5 – 4.6 GtCO₂e)
The Emissions Gap Report 2013, A UNEP Synthesis Report November 2013
http://www.unep.org/publications/ebooks/emissionsgapreport2013/
25

Counteracting the Increase in GHG

 Mitigation costs will be counteracted by near-term cobenefits (e.g., improved health due to reduced air pollution,
cost savings on fuel) that may offset a substantial fraction of
mitigation costs
 Changes in lifestyle, behavior patterns, and management
practices can contribute to mitigation across all sectors
 An effective price signal could realize significant mitigation
in all economic sectors. A price of $20-80/ton of CO2 is
consistent with stabilization around 550 ppm by 2100
UN Intergovernmental Panel on Climate Change (2007)

Http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf

 In the next few decades, the world’s energy systems must
be transformed so that global emissions drop 50 to 80%
World Bank, World Development Report 2010
http://siteresources.worldbank.org/INTWDR2010/Resources/52876781226014527953/WDR10-Full-Text.pdf

26

Conceptual Approaches
 Direct regulation would impose GHG emission limits on power
plants and industrial facilities and transportation equipment.
Regulation only works if vigorously enforced, because there is
no incentive to comply with uneconomic rules
 Taxation and subsidies are economic mechanisms to make
GHG emissions relatively more expensive by increasing the
relative price of GHG-causing energy sources (oil, coal, natural
gas) as compared to non-GHG-causing energy sources (wind,
solar, nuclear). The incentives work to some degree, but the
degree of GHG reduction is uncertain
 “Cap-and-trade” systems fix the total quantity of GHG
emissions, divide it into shares, and allow the transfer of shares
through a market system, which gives shares an economic
value and creates a financial incentive to reduce GHG emissions
27

Some Complexities of the Carbon Tax Approach
 A Carbon Tax seems administratively simple and effective,
and it does raise revenue to offset inequities in its impact.

 But calibrating the tax to accomplish a given emissions
reduction objective is difficult and lends itself to selfserving economic prediction.
 In 2011, columnist John Lee attacked China’s proposed
carbon tax in the Wall Street Journal. He claimed that
China’s decision to levy a carbon tax rather than adopting
a cap-and-trade scheme ―revealed the government’s true
intent: [that there would be] no strict limit on the total
amount of carbon emitted‖
http://www.chinadialogue.net/article/show/single/en/4742

28

Some complexities of “cap-and-trade” systems


Determining the national cap and allocating the shares.
Industry emitters want an annual cap that starts high and
declines slowly, and no-cost initial allocation of shares to existing
GHG emitters. Environmental experts and NGO advocates want
a low, sharply declining annual cap and auction of the shares



Regulating the market for shares. The right to trade shares
means users who don’t need all of their allocation can sell excess
shares to other users. Additional shares (―offsets‖) can be
created by absorbing GHG emissions by planting forests or
building facilities that absorb GHGs. The offset reductions must
be verified, in part because after the offsets are sold, the seller
may have no incentive to continue carrying out the reductions



Controlling international share transactions. If the offsets
are in other countries, verification becomes more difficult.
Moreover, some of the economic benefits will then occur
overseas, separating net costs from net benefits.

29

EU, Australia?, Canada, China, California
 EU – The EC has created an Emissions Trading System (ETS). The
EC establishes CO2 emissions limits for every EU member state. CO2
emission allowances are granted to emitting facilities pursuant to
national allocation plans. The allowances can be traded by to cover
the quantities of CO2 facilities emit in their operations


Australia – In November 2011 Australia’s Parliament approved the
government’s proposal to adopt an ambitious emissions trading
program. The new regulations would impose a carbon tax on 500 of
the country’s biggest polluters in July, 2014 before becoming a
market-based trading program in 2015. But Prime Minister Abbot
(elected September 2013) intends to end this program



South Korea – President Lee Myung Bak’s proposal sets emission
targets for almost 500 of Korea's largest polluters starting this year
as a lead-up to cap and trade in 2015 (Bloomberg Feb 8, 2012)
30

EU, Australia?, Canada, China, California – (continued)
 Canada – In 2007, the federal government announced an Action
Plan to Reduce GHG and Air Pollution (the Plan) through mandatory
reduction targets (with trading) for all major GHG-producing
industries to achieve an absolute reduction of 150 megatonnes in
GHG emissions from 2006 levels by 2020.
As of 2010, the federal government has indicated that while it
remains committed to reducing Canada’s total greenhouse gas
emissions by 17 percent from 2005 levels by 2020, this target is
subject to adjustment to remain consistent with the U.S.
http://www.uss.com/corp/proxy/annual-report
2010/U.%20S.%20Steel%20Annual%20Report%20and%20Form%2010K%202010.pdf

31

EU, Australia?, Canada, China, California (continued)
China’s carbon trading exchanges and carbon taxes
 China is launching seven pilot carbon-trading platforms: Beijing,
Shenzhen, Shanghai, and Guangdong province by the end of
2013; and Tianjin, Chongqing, and Hubei province in 2014

 China law does not force companies to participate in the
carbon-trading exchanges
 As of October 2013 China had still not instituted a carbon tax,
saying that its experimental trading system seems to be
working well. http://www.bloomberg.com/news/2013-10-17/china-workingon-carbon-markets-before-tax-ndrc-official-says.html

 China's government seeks to cut the 2005 rate of CO2 emissions
per unit of GDP growth by 40% to 45% by decade's end
http://chinawatch.washingtonpost.com/2013/12/carbon-pricing-may-be-linkedto-china.php

32

California
California’s plan to reduce GHG to 1990 levels (-30%) by 2020:
 Produce 33% of electricity from renewable sources by 2020
 Expand and strengthen existing energy efficiency programs,
building and appliance standards, and clean car standards, goods
movement measures, and the Low Carbon Fuel Standard
 Develop a State cap-and-trade program covering 85% of GHG, with
Western Climate Initiative parties (6 States, 4 Canadian provinces)
 Establish targets for transportation-related GHG emissions in every
California region, and policies and incentives to achieve them
 Create targeted fees on water use, gases with high global warming
potential, and fees to fund the administration of implementation
http://www.arb.ca.gov/cc/scopingplan/document/adopted_scoping_plan.pdf

33

Latest UN Environmental Program Data and Projections
 Relative contributions to global emissions from developing and
developed countries changed little from 1990 to 1999. But
the balance changed significantly between 2000 and 2010
 The developed country share decreased from 51.8% to
40.9%, while developing country emissions increased from
48.2% to 59.1%
 Today developing and developed countries are responsible for
roughly equal shares of cumulative GHG for the period
1850-2010
34

Latest UN Data and Projections (continued 2)
 Available evidence from 13 of the parties to the Climate
Convention that have made pledges or commitments indicates
that 5 – Australia, China, the European Union, India and
the Russian Federation – appear to be on track to meet their
pledges
 Four parties – Canada, Japan, Mexico and the U.S. – may
require further action and/or purchased offsets to meet their
pledges, according to government and independent estimates of
projected national emissions in 2020
 A fifth party – the Republic of Korea – may also require
further action but this could not be verified based on
government estimates.
35

 Even if pledges are fully implemented, the 2o C emissions gap
in 2020 will be 8–12 GtCO2e/year, assuming least-cost emission
pathways. Limited available information indicates that the
emissions gap to meet a 1.5° C target in 2020 is a further 2–5
GtCO2e/year
 Least-cost emission pathways consistent with a likely chance of
meeting a 2° C target require global emissions in 2050 that are
41% below 1990 emission levels and 55% below 2010

 The technical potential for reducing emissions to levels in 2020 is
still estimated at about 17 ± 3 GtCO2e. This is enough to close the
gap between business-as-usual emission levels and levels that
meet the 2° C target, but time is running out
36

 The longer decisive mitigation efforts are postponed, the higher the
dependence on negative emissions in the second half of the 21st
century to keep the average temperature increase below 2° C
 The technologies required for achieving negative emissions may
have significant negative environmental impacts
 Later-action scenarios may not be feasible in practice and, as a
result, temperature targets could be missed

 Adaptation‖ suggests that we actually can, at some expense,
restore ourselves to the same position we would have been in
without climate change. But climate change will not be a marginal
change; it will alter all aspects of human activity, just as the
automobile has changed the whole concept and structure of
modern life http://legal-planet.org/2013/11/18/the-limits-of-adaptation/
37

V. US Congressional Action on GHGs 2009 –
The Politics of Climate Change

38

V. US Congressional Action on GHGs 2009 –
 “The most important votes of 2010 were the ones that
didn’t happen: . . . the Senate failed to even begin debate on
a comprehensive clean energy and climate bill; next [it] failed to
respond to the catastrophic oil spill in the Gulf of Mexico‖
US League of Conservation Voters Environmental Scorecard

 Congress did not pass a law to set up a cap-and-trade
program to control GHGs
 Congress also did not pass a law to limit EPA’s authority
to regulate GHGs under existing Clean Air Act (CAA) provisions
 Congress did extend subsidies for clean energy, including
wind and solar power and electric cars. Consumers who
buy electric or hybrid cars can get as much as $7,500 off the
price (about 15% of the typical car cost) as a tax credit from the
government
39

V. US Congressional Action on GHGs
111th Congress Senate and House Cap-and-Trade Bills
– common provisions
 The House of Representatives passed a cap-and-trade climate change
bill (H.R. 2454) to control GHG emissions June 23, 2009
 The Senate Environment Committee reported out a GHG bill (S. 1713),
but it could not get the necessary 60 Senate votes
 The bills had the following common features:
 a goal of reducing annual GHG to 83% below 2005 levels by 2050
 a cap-and-trade system to control GHG emissions from ~85% of
current U.S. GHG sources – electricity production, natural gas
distribution, petroleum refining, and industrial sectors
 free GHG shares to certain sources and auctions to other sources,
with funds from the auctions going to low-income consumers,
infrastructure, and deficit reduction
 authority for EPA to set GHG performance standards for some
entities not covered by the cap-and-trade program
40

The Senate and House Bills
– differences


The Senate bill contained a slightly lower emissions cap between
2017 and 2029



House & Senate bills each exempted certain entities from some
provisions of the CAA, but the exemptions differed



The House bill included a regulatory system for the carbon market
for trading GHG units among private parties; the Senate bill did not
address that subject



The House bill allowed 50% of offsets to be international; the
Senate bill allowed only 25% of offsets to be international

The House bill imposed a border charge (an ―international reserve
allowance‖ scheme) on imports from countries with inadequate
GHG policies – effectively a compensatory tariff
_______________________________________________________
 No legislation was adopted and made law
41


No Progress in the 112th and 113th Congresses


New Members of the House of Representatives in the 112th
and current 113th Congress, almost all Republicans, oppose
any program to regulate GHG – they doubt the GHG science
and generally oppose more regulation. They do not have a
majority in the Senate, however



The 112th Congress did not try to enact a cap-and-trade
program like the bills considered in the 111th Congress



On February 18, 2011 the House voted 249-177 to prohibit
EPA from regulating GHGs and to cut EPA’s budget by 30%.
The Senate and President Obama opposed, and they were
dropped

42

VI. Authority to Regulate GHG under the CAA
Provisions of the Clean Air Act
 Environmentalists argued that the US Environmental Protection
Agency (EPA) already had authority to regulate GHG under existing
provisions of the CAA, without Congressional action


regulating GHG emissions from mobile sources (sec. 7521)



setting National Ambient Air Quality Standards (NAAQS) for GHG.
Then each State must adopt a State Implementation Plan (SIP),
which requires EPA approval, that regulates stationary sources to
ensure NAAQS are met (secs. 7409, 7410)



regulating GHGs as ―hazardous air pollutants‖ (sec. 7412)



regulating GHGs from new sources as ―designated air pollutants‖
(sec. 7411)



regulating GHGs as ―international pollution‖ (sec. 7415)



regulating GHGs under ―stratospheric ozone‖ (sec. 7671)
43

VI. Authority to Regulate GHG Under the CAA
Mobile Sources (42 USC 7521)


CAA requires EPA to regulate emissions from mobile sources
(cars and trucks) under uniform national regulations based on
best available technology, considering cost



EPA ―shall by regulation prescribe . . . standards applicable to the
emission of any air pollutant from any class . . . of new motor
vehicles . . . which in [the EPA Administrator’s] judgment
cause[s], or contribute[s] to, air pollution . . . reasonably . . .
anticipated to endanger public health or welfare‖



―Air pollutant‖ is defined to include ―any air pollution agent . . . ,
including any physical, chemical . . . substance . . . emitted into .
. . the ambient air‖



―Welfare‖ is defined to include ―effects on . . . weather . . . and
climate‖
44

Rulemaking Procedure under the CAA [enacted 1970]


A Notice of Proposed Rulemaking shall be published in the
Federal Register, accompanied by a statement of its basis and
purpose, and shall specify the period available for public
comment. The statement of basis and purpose shall include a
summary of —
(A) the factual data on which the proposed rule is based;
(B) the methodology used in obtaining the data and in
analyzing the data;
(C) the major legal interpretations and policy
considerations underlying the proposed rule



The promulgated rule shall be accompanied by a response to
each of the significant comments, criticisms, and new data
submitted during the comment period
45

Judicial Review of CAA Rulemaking
 Any person may commence a civil action on his own behalf —
 against any person (including the United States, and any
other governmental instrumentality or agency . . .) who is
alleged to . . . to be in violation of an emission standard or
limitation under this chapter or an order issued by the
Administrator or a State
 against the Administrator where there is alleged a failure
of the Administrator to perform any act or duty under this
chapter which is not discretionary with the Administrator
 A petition for review of . . . final action taken, by the
Administrator . . . may be filed only in the United States Court
of Appeals for the District of Columbia

46

Judicial Review of CAA Rulemaking (continued)

 A court may reverse a rulemaking found to be —


arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;



contrary to constitutional right, power, privilege, or
immunity;



in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; or



without observance of procedure required by law

47

 In Chevron v. NRDC, 467 U.S. 837 (1984), the Supreme Court held
that when, reviewing EPA’s interpretation of the CAA


If the intent of Congress is clear, the court as well as the
agency must give effect to Congress’ unambiguously
expressed intent



If the statute is silent or ambiguous with respect to the
specific question, the issue for the court is whether the
agency's answer is based on a permissible construction
of the statute

48

VI. EPA Authority to Regulate GHG Under the CAA
 This statutory authority is limited by the Article III, Section 2 of
the Constitution, which limits Federal courts to hear only ―cases
or controversies.‖
 The Federal courts cannot give advisory opinions, but only decide
actual controversies where the court’s decision will have an effect
on the parties

 The Supreme court has ruled that to have standing to bring a
case, a Petitioner must show –


injury, causation, and redressability



―such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court depends‖
49

VII. Massachusetts v. EPA, 200 US 321 (2007)
Background - EPA and lower court decisions
 In 1999, Massachusetts and other States and NGOs petitioned EPA to
regulate GHGs from mobile sources. In 2001, EPA requested and
received nearly 50,000 public comments on the petition. In 2003,
EPA denied the petition. EPA concluded
 it lacked authority under the CAA to regulate carbon dioxide and
other greenhouse gases (GHGs) for climate change purposes
 even if it had authority, it would not regulate mobile source GHGs
for policy reasons:
o scientific uncertainty about the impact of GHG
o
ineffectiveness, since rules would control a small % of GHG
o
unilateral action would harm efforts for global agreement
 In 2005, the 3-judge DC Court of Appeals split 3 ways –
 1 judge would grant petitioners’ standing and reverse EPA
 1 judge would grant petitioners’ standing but uphold EPA
 1 judge would deny standing and (if necessary) uphold EPA
The combined ruling upheld EPA’s decision to deny the Petition

50

US Supreme Court Decision - standing
 In 2007, the US Supreme Court reversed the Court of Appeals
decision by a 5-4 vote. First, it held that at least one petitioner
has standing:


The US Constitution only allows the Federal courts to decide
―cases or controversies;‖ it cannot give advisory opinions.



In this case Massachusetts has standing, in light of
(1) Congress’ authorization for ―any person‖ to challenge an
EPA action under the CAA
(2) the likely adverse effect of rising sea levels on State land
(3) the likelihood that EPA action will reduce the injury to
some degree, even if other GHG emissions are not
controlled
51

US Supreme Court Decision - merits

 On the substance of the argument, the Court agreed with
Massachusetts, reasoning as follows:


EPA agrees with petitioners that GHGs contribute to global
warming. EPA’s failure to regulate GHGs therefore
contributes to petitioners’ injury



GHGs fall within the statutory definition of air pollution.
The injury that petitioners seek to avoid is an adverse
effect on their welfare



EPA does not have authority to decline to regulate for nonstatutory policy reasons when Congress has established
the criteria for decision in the statute



EPA’s rejection of the Petition is therefore ―arbitrary,
capricious, . . or otherwise not in accordance with law‖

http://www.supremecourt.gov/opinions/06pdf/05-1120.pdf

52

VIII. EPA Action 2008 –
Immediate responses to Massachusetts v. EPA


In July 2008, EPA filed an Advance Notice of Proposed
Rulemaking on the findings below, and in April 2009 filed a
Proposed Rulemaking. EPA received 380,000 comments from
the public



In December 2009, EPA issued two final GHG findings:
 “Endangerment”: Current and projected concentrations of
the six key GHGs in the atmosphere threaten the public health
and welfare of current and future generations
 “Cause or Contribute”: Emissions of these GHGs from new
motor vehicles and new motor vehicle engines contribute to
GHG pollution which threatens public health and welfare
http://www.epa.gov/climatechange/endangerment/downloads/Federal_RegisterEPA-HQ-OAR-2009-0171-Dec.15-09.pdf

53

Immediate responses to Massachusetts v. EPA


In December 2010 EPA entered into two proposed
Settlement Agreements with the Petitioners in
Massachusetts v. EPA. They require EPA to issue rules
controlling GHG from natural gas, oil, and coal-fired
electric generating units (EGUs), and from refineries.



These two classes of sources cause 40% of the US GHG
emissions from stationary sources.
http://www2.epa.gov/carbon-pollution-standards/2013-proposed-carbonpollution-standard-new-power-plants

54

Motor Vehicle Emissions
 On September 15, 2009 EPA proposed GHG regulations for
new motor vehicles

 “A New Generation of Clean Vehicles” In 2010 EPA and
the National Highway Traffic Safety Administration (NHTSA)
began taking coordinated steps to enable the production of a
new generation of clean vehicles, through
 reduced GHG emissions and improved fuel efficiency
from on-road vehicles and engines
 GHG regulations for trucks and further regulations for
autos
http://www.epa.gov/oms/climate/regulations.htm#1-1

 Commitment Letters from stakeholders A broad range of
stakeholders, including the California and major automobile
and truck manufacturers, supported this effort
55

GHG Limits for Major New Stationary Sources

 Final GHG Tailoring Rule
 On May 13, 2010, EPA set GHG emissions thresholds to
define when permits are required under the New Source
Review Prevention of Significant Deterioration (PSD)
and Title V Operating Permit (NSPS) regulations
governing new and existing industrial facilities
 This rule "tailors" the requirements of these CAA
permitting programs to apply only to the largest GHG
emitters: EGUs, refineries, cement producers

 Facilities responsible for nearly 70% of the US GHG
emissions from stationary sources will be subject to
permitting requirements under this rule
56

GHG Limits for New and Existing EGUs
and for Oil Refineries
 Standards for New Electric Generating Units (EGUs)
 On September 2013 EPA issued a revised set of proposed rules
for new natural, gas, oil, and coal-fired EGUs. The proposed
rules would establish new source performance standards
(NSPS) for new and modified EGUs.

 Forthcoming Standards
 A later rulemaking will establish emission guidelines for existing
EGUs. Under the CAA, State governments regulate existing
sources under their State Implementation Plans and rules.

 For oil refineries, EPA would pursue a comprehensive approach
simultaneously addressing different types of air pollution (GHG,
toxics and ―criteria‖ pollutants) from refineries
http://www.epa.gov/climatechange/EPAactivities/regulatoryinitiatives.html#stationary

57

IX. Presidential Action 2009 –
Presidential Declaration of Policy
―We, the people, still believe that our obligations as Americans are
not just to ourselves, but to all posterity. We will respond to the
threat of climate change, knowing that the failure to do so would
betray our children and future generations.
―Some may still deny the overwhelming judgment of science, but
none can avoid the devastating impact of raging fires and crippling
drought and more powerful storms.
―The path towards sustainable energy sources will be long and
sometimes difficult. But America cannot resist this transition; we
must lead it.‖
President Barack Obama, Second Inaugural Address, January 21, 2012

58

President’s Climate Action Plan, June 2013
1. Reducing Emissions:
 Directs EPA to work closely with states, industry and other
stakeholders to establish carbon pollution standards for both
new and existing power plants
 Makes up to $8 billion in loan guarantee authority available for
a wide array of advanced fossil energy and efficiency projects
to support investments in innovative technologies
 Directs the Interior Department to permit enough renewables
projects — like wind and solar – on public lands by 2020 to
power more than 6 million homes; designates the first-ever
hydropower project for priority permitting; and sets a new goal
to install 100 megawatts of renewables on federally assisted
housing by 2020; maintains the commitment to deploy
renewables on military installations
59


1. Reducing Emissions (continued)
 Expands the President’s Better Building Challenge, helping
commercial, industrial, and multi-family buildings cut waste and
become at least 20 percent more energy efficient by 2020
 Sets a goal to reduce carbon pollution by at least 3 billion metric
tons cumulatively by 2030 – over half of the annual carbon
pollution from the U.S. energy sector – through efficiency
standards for appliances and federal buildings
 Commits to partnering with industry to develop fuel economy
standards for heavy-duty vehicles to reduce fuel prices and
further reduce reliance on foreign oil and fuel after 2018
 Leverages new opportunities to reduce pollution of highly-potent
HFCs; directs agencies to develop a comprehensive methane
strategy; and commits to protect forests and critical landscapes.
60

2. Impact Mitigation
 Directs Federal agencies to support local climate-resilient investment;
establishes a short-term task force of state, local, and tribal officials
to advise on Federal actions to help strengthen communities
 Pilots innovative strategies in the Hurricane Sandy-affected region to
strengthen communities against future extreme weather and other
climate impacts; agencies will update flood-risk reduction standards
for all federally funded projects
 Seeks to create sustainable, resilient hospitals to deal with climate
change using a public-private partnership with industry
 Maintains agricultural productivity by delivering science-based
knowledge to farmers, ranchers, and landowners; creates a National
Drought Resilience Partnership and expands forest- and rangelandrestoration efforts to make them less vulnerable to catastrophic fire
 Provides preparedness tools for state, local, and private-sector
leaders through a centralized ―toolkit‖ and a Climate Data Initiative
61

3. International Leadership

 Commits to expand major new and existing international
initiatives, including bilateral initiatives with China, India, and
other major emitting countries
 Leads global sector public financing towards cleaner energy by
calling for the end of U.S. government support for public
financing of new coal-fired powers plants overseas, except for
the most efficient coal technology available in the world's
poorest countries, or facilities deploying carbon capture and
sequestration technologies
 Strengthens global resilience to climate change by expanding
government and local community planning and response
capacities
62

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