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Editor Michael Burger brings together a comprehensive assessment of how one statutory provision – Section 115 of the Clean Air Act, “International Air Pollution” – provides the executive branch of the U.S. government with the authority, procedures, and mechanisms to work with the states and private sector to take national climate action.
Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country's climate change goals: Section 115 of the Clean Air Act, titled “International Air Pollution.” This provision authorizes EPA to require states to address emissions that contribute to air pollution endangering public health or welfare in other countries, if the other countries provide the U.S. with reciprocal protections. The language of Section 115 does not limit the agency to regulating a particular source-type, or a given industrial or economic sector. Rather, it grants EPA and the states broad latitude to address international air pollution comprehensively through the Clean Air Act's State Implementation Plan process, increasing administrative efficiency and reducing burdens on regulated companies. EPA and the states could use the provision to establish an economy-wide, market-based approach for reducing GHG emissions. Such a program would provide one of the most effective and efficient means to address climate change pollution in the United States.
The legal landscape around climate change is complex, unstable, and expanding. Scientists continue to publish new findings, policy makers regularly adopt new regulations, and petitioners file new litigation, nationwide and around the world. Hence the need for this third edition. Most of it is completely new, and the few chapters carried over from the second edition have been thoroughly updated.
In 2003, the Environmental Protection Agency formally refused to regulate greenhouse gas emissions from automobiles, explaining that it had no authority under the Clean Air Act to undertake such regulation and that it would, in any event, decline to exercise such authority for various policy reasons. In Massachusetts v. EPA, the Supreme Court rejected EPA's decision on both counts. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and it narrowly circumscribed the circumstances under which the agency could refuse to decide whether greenhouse gases may endanger public health or welfare. This Article, written before the Supreme Court's decision was announced and based on the author's briefs for petitioners in the case, examines in detail the reasons why EPA's views on statutory authority and discretion were incorrect.
In the spring of 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the U.S. Environmental Protection Agency (EPA) must promulgate automobile tailpipe greenhouse gas emission standards under Section 202 of the Clean Air Act (CAA). American environmentalists hailed the Supreme Court's decision as an important victory in the battle to curb global warming. This article argues to the contrary that: 1) a large body of economic work demonstrates that the likely geographic and temporal pattern of costs and benefits to the U.S. from climate change bears no resemblance to the pollution problems that Congress intended to deal with in the Clean Air Act - with moderate climate change predominantly benefiting, rather than harming, the U.S. - so that that the Clean Air Act cannot reasonably be interpreted to cover greenhouse gas emissions; 2) By effectively forcing the EPA to regulate ghg emissions under a statute that was never intended to cover the very different problem of climate change, the Court has changed the policy status quo in a way that makes socially desirable federal climate change legislation less likely; and 3) given the global nature of the greenhouse gas emission problem, unilateral emission limits in the U.S. are likely to be worse than ineffective, in that they will likely have the perverse effect of lessening the incentive for latecomers to climate change regulation (such as China) to themselves take costly action to reduce such emissions. The article concludes by arguing that a sensible formulation of U.S. climate change policy would involve measures to respond both to the long-term threat to the U.S. and the short-term threat to developing countries. There are policy instruments appropriate to these goals: large increases in subsidies for research and development into clean coal and alternative fuels to respond to the long term threat to the U.S.; redirecting foreign aid to fund climate change adaptation in developing countries to respond to the short term threat to developing countries.
The challenge before us is unprecedented. Global climate change demands a transformation of our entire economy and energy system within just a few short years in order to preserve a healthy natural world and a sustainable way of life for our children and grandchildren. The good news is that the technological solutions are well within reach. The bad news is that our system of democratic governance in the United States is so paralyzed that it may be incapable of meeting this challenge. Nevertheless, we already have some powerful tools that will enable us to make substantial progress toward a brighter future. The Clean Air Act is a broad federal statute consisting of many different programs and approaches. Among these are fair, effective, and flexible regulatory authorities that can be used right away to move technological solutions off the shelf and into common usage. In particular, under sections 111 and 202 of the Clean Air Act, the United States Environmental Protection Agency (EPA) has authority to directly regulate stationary and mobile sources on a sector-by-sector basis. This Article surveys the emission reduction strategies available in key industries and mobile source categories, and it concludes that EPA can quickly reduce emissions by approximately 24% using the sectoral approach. This will put us on the path toward the necessary 50% to 85% reductions overall, and it will allow us to keep moving forward while the more difficult transformation of our energy system is underway. A key advantage of the sectoral approach is its straightforward legal framework. With clear statutory guidelines, EPA's regulations are not likely to get caught up in protracted litigation. The sectoral approach also promotes fairness by ensuring a level playing field across each industry, and it promotes efficiency by focusing on outcomes and motivating industry to find innovative ways of achieving them. In short, this Article urges EPA to focus its attention on regulating greenhouse gas emissions on a sector-by-sector basis under the Clean Air Act. Moreover, in light of the urgency of the climate crisis, this Article also urges Congress to reject any legislative proposal that would strip EPA of these effective regulatory tools.
The principal statute addressing air quality concerns, the Clean Air Act was first enacted in 1955, with major revisions in 1970, 1977, and 1990 and is addressed in the first part of this book. Congressional actions on air quality issues have been dominated since 2011 by efforts particularly in the Houseto change the Environmental Protection Agencys (EPAs) authority to promulgate or implement new emission control requirements. EPAs regulations on greenhouse gas emissions from electric power plants and from oil and gas industry sources have been of particular interest, as have the agencys efforts to revise ambient air quality standards for ozone. The 115th Congress and the Trump Administration are reviewing some of these regulations, with the possibility of their modification or repeal. On October 23, 2015, the U.S. Environmental Protection Agency (EPA) published its final Clean Power Plan rule (Rule) to regulate emissions of greenhouse gases (GHGs), specifically carbon dioxide (CO2), from existing fossil fuel-fired power plants. The aim of the Rule, according to EPA, is to help protect human health and the environment from the impacts of climate change. The Clean Power Plan would require states to submit plans to achieve state-specific CO2 goals reflecting emission performance rates or emission levels for predominantly coal- and gas-fired power plants, with a series of interim goals culminating in final goals by 2030.
Climate policy in the United States is near an inflection point. With Congress uninterested in new legislation, focus at the federal level for most of the last decade has been on the Clean Air Act, but whether regulation under that old statute can successfully address carbon emissions remains unclear. Under President Obama, the US Environmental Protection Agency (EPA) has focused on two core programs -- vehicle emissions standards and the Clean Power Plan, aimed at fossil fuel power plants. But with the latter of these programs under legal challenge, and both falling short of the flexible, economy-wide policy many believe is necessary, academic and policy attention is turning to an additional Clean Air Act provision. §115 of the Clean Air Act is aimed at international air pollution, and its advocates suggest it could be a vehicle to achieve deeper emissions reductions, perhaps including nationwide cap and trade or a carbon tax. This paper critically examines §115 and its supporters' claims, concluding that it holds great promise but also comes with legal risks. A court considering the inevitable legal challenge to §115 regulation might deem it a legal “mousehole” that Congress could not have intended to carry the weight of the climate policy “elephant,” or it might rule that §115 is limited to “conventional” pollutants rather than extending to carbon. There are strong counterarguments to both of these, but each remains a real legal risk and has likely been underappreciated by supporters of §115. Even if §115 survives such facial challenges, other legal challenges (if successful) could prevent it from being able to match its advocates' ambitions. Most of these narrower challenges appear relatively weak, however. §115's promise makes it worth pursuing, but with caution.
Greenhouse gas emissions by the livestock sector could be cut by as much as 30 percent through the wider use of existing best practices and technologies. FAO conducted a detailed analysis of GHG emissions at multiple stages of various livestock supply chains, including the production and transport of animal feed, on-farm energy use, emissions from animal digestion and manure decay, as well as the post-slaughter transport, refrigeration and packaging of animal products. This report represents the most comprehensive estimate made to-date of livestocks contribution to global warming as well as the sectors potential to help tackle the problem. This publication is aimed at professionals in food and agriculture as well as policy makers.