Climate Change Policy and Greenhouse Gas Regulation

Posted: Aug 31, 2010

 

What exactly is U.S. 'policy' on greenhouse gas emissions?  At one point in their briefs, Defendants acknowledge that this country’s official policy and Congress’ strategy is to reduce the generation of greenhouse gas emissions.  Elsewhere, they point to a policy of research as a prelude to formulating a coordinated, national policy.  They also assert that U.S. policy is 'not to engage in unilateral reduction of domestic emissions' (relating, in particular, to the international arena).  These variegated pronouncements underscore the point that there really is no unified policy on greenhouse gas emissions.”  Connecticut v. American Electric Power, 582 F.3d, 309, 331-332 (2d Cir. 2009).

Despite the EPA’s 2009 endangerment finding recognition that the six major greenhouse gases “endanger the public health and welfare of current and future generation,” and the Intergovernmental Panel on Climate Change determination that human activity caused an increase in the earth’s temperature, the U.S. lacks a unified policy on greenhouse gas emissions. And, with the 112th Congress' opposition to EPA's regulatory authority over greenhouse gas emissions and the departure of White House Climate Change Policy Coordinator Carol Browner in January 2011, it appears that no major federal initiatives are imminent.

In the absence of a coordinated federal policy, states have taken the lead in addressing this issue. In December 2010, California adopted the most comprehensive set of rules on carbon dioxide and other greenhouse gas emissions. See "California approves stringent pollution curbs," New York Times, 12/13/10.

A number of statutes, treaties, and judicial decisions provide insight into the complicated policy decisions and conflicting interests that have crafted a legal framework for greenhouse gas regulation in the U.S.  That framework is evolving quickly, and this page sorts through its most important components. The primary sources of international framework are:

In the meantime, as evidence of ongoing impacts of climate change mount, public resource managers and NGOs are taking action to help natural systems adapt to the changing conditions, also known as "resiliency." See, for example, "Seeing trends, coalition works to help a river adapt," New York Times, 7/20/11.


Key Concepts


Climate Change


Climate change is a broader term than global warming.  It includes changes beyond temperature, such as precipitation levels and storm patterns.  It refers to long-term changes, such as those occurring over several decades, not short-term fluctuations.  However, there is disagreement whether the definition should include changes due both “to natural variability [and] as a result of human activity,” as in the Intergovernmental Panel on Climate Change (IPCC) reports, or only those changes directly attributed to human activity, as in the United Nations Framework Convention on Climate Change (UNFCCC).


The Major Greenhouse Gasescarbon_dioxide_chart.gif


The six man-made greenhouse gases addressed by theKyoto Protocol are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluourocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).  Nitrogen trifluoride (NF3) would be regulated as a seventh major greenhouse gas under the Waxman-Markey bill that passed the House of Representative  June 26, 2009 but failed to pass the Senate before the conclusion of the 111th congressional session.  CO2 is responsible for 85 percent of human-produced greenhouse gases in the U.S.  Because CO2 is such a large contributor, greenhouse gas emissions are often expressed as tons of carbon dioxide equivalents (CO2e) (for the quantity of a gas producing the equivalent greenhouse effect as one ton of CO2 over 100 years).

 

Black Carbon is emitted by burning forests, fossil fuels, and biomass including wood and dung stoves.  Black carbon is not covered by the Kyoto Protocol, but may be the second greatest contributor to global warming and responsible for more than 50% of Arctic warming over the past 100 years. Black carbon has two warming effects: as a traditional greenhouse gas in the atmosphere and as a heat-absorbent on the ground, especially when it falls on snow.  Black carbon is emitted by burning forests, fossil fuels, and biomass including wood and dung stoves. Many scientists recommend reducing black carbon emissions as the first step in mitigating global warming, partly because it has a half-life of only a few weeks.

 Water vapor may also play an important role, but there is disagreement over what that role will be.

  • Water vapor is the most abundant naturally occurring greenhouse gas.
  • “While human activities do not directly add significant amounts of water vapor to the atmosphere, warmer air contains more water vapor. Since water vapor is itself a greenhouse gas, global warming will be further enhanced by the increased amounts of water vapor. This sort of indirect effect is called a positive feedback.”
  • Although the prevailing view appears to be that water vapor will create a positive feedback loop, some scientists, like MIT's Richard Lindzen, disagree. He asserts that observations reveal that water vapor in clouds actually cool the earth, which would create a negative feedback and reduce human potential to spur global warming.

In February 2011, the U.S. EPA issued a draft inventory of U.S. greenhouse gas emissions and sinks, 1999-2009. In January 2012, the EPA unveiled a database for tracking these emissions on an ongoing basis for a variety of emission sources, including power plants, refineries, and manufacturers. See "EPA tool tracks major greenhouse gas sources," LA Times, 1/11/12.


Greenhouse Effect


The sun radiates heat onto the earth, much of which is reflected back into outer space.  However, certain “greenhouse gases” absorb the reflected heat so that it is trapped in the Earth’s atmosphere, warming our planet. 

 Since the industrial revolution, humans have added substantial amounts of greenhouse gases to the atmosphere.  As of 2009, carbon dioxide atmospheric concentrations had risen to 388 parts per million (ppm), up from the 270-285 ppm range between 1 and 1750 AD.   Half of that increase took place in the last thirty years.  Methane atmospheric concentrations have also risen significantly: they were 1774 ppb as of 2005, up from the 710-720 range between 1700 and 1800 AD. 

 Meanwhile, between 1906 and 2005, the average global temperature rose by 1.01 to 1.66 degrees Fahrenheit.  The IPCC concluded in its 2007 Fourth Assessment Report that the human addition of greenhouse gases was very likely (90-99%) the cause of global warming.  Changes in precipitation patterns causing more floods, inland droughts, and more severe storms also appear to be the result of human greenhouse gas emissions.


Process Essentials: Regulatory Options


Addressing climate change requires coordinated policy responses on a scale never before attempted. The following regulatory options can and are employed from local to international schemes, with varying degrees of potential and political support.


Command and Control


The most commonly employed form of pollution control in the U.S., “command-and-control” regulation limits amounts of pollutants that major sources may emit.  Under the Clean Air Act, the EPA could regulate major greenhouse gases from all large-scale emitters, including both stationary sources like coal and natural gas power plants and mobile sources like automobiles and airplanes.  On December 15, 2009, EPA made an “endangerment finding” – that the six major greenhouse gases “endanger the public health and welfare of current and future generations.”  The finding and its consequences are discussed further in the Clean Air Act section.  This finding could be the basis for command-and-control regulation.  However, see Controversies: Regulatory Issues for an explanation of why a cap-and-trade system is likely to supersede command-and-control regulation despite existing EPA policy. 


Cap and Trade


A cap-and-trade system would cap the overall quantity of greenhouse gases emitted and initially auction or otherwise distribute emission allowances to emitters. Then, companies that reduce their emissions more quickly than others could sell their extra allowances. In theory, the economy would efficiently allocate the allowances, reducing emissions at the lowest possible cost to society. Every year, the cap would be tightened to reduce emissions until a particular goal is met. The Waxman-Markey bill included a proposed cap-and-trade program, but was rejected by the 111th Congress; see Kyoto Mechanisms for an explanation of emissions trading under the Kyoto Protocol; and see Controversies: Regulatory Issues for the arguments between cap-and-trade and a carbon tax.


Carbon Tax


A carbon tax imposes a dollar tax per ton of CO2e. The tax would probably be imposed only on large sources to facilitate administration, but could be imposed in many conceivable ways. A popular option is to implement the carbon tax at the source of extraction – where coal or petroleum is removed from the ground – and pass it on to manufacturers and consumers through market forces.


Voluntary Carbon Offset Markets



Carbon Offset Sellers 

Montana-based ClearSky Climate Solutions sells carbon offsets for $12 per ton. Carbon offsets, also called carbon credits, are guarantees by the company that a certain amount of greenhouse gas emissions will be sequestered or prevented from entering the atmosphere. Individual customers can use a carbon footprint calculator at the ClearSky website to determine the amount of greenhouse gases they emit each year. ClearSky also offers individualized carbon footprint consulting for companies and event planners. Carbon credits can then be purchased to offset that emission and make the customer carbon neutral. 

Clearsky advocates purchasing the credits only to balance unavoidable emissions after taking all other steps to reduce a carbon footprint. Unlike some of its competitors, ClearSky customers choose the project funded by the offset. ClearSky offers a re-foresting offset in Panama; a methane capture offset in Wisconsin; a methane capture offset in Pennsylvania; soil carbon sequestration offset in Montana; and a re-forestation offset in Texas. 

Other sellers of carbon credits include Carbonfund.org,TerraPass, and LiveNeutral.Voluntary carbon offset markets go beyond existing regulations and allow for market forces to reduce greenhouse gas emissions. Companies and individuals wanting to push the envelope beyond existing regulations have been investing in voluntary carbon offset markets. There are several different voluntary carbon offset standards. Some are modeled on the Kyoto Protocol clean development mechanisms (like the Voluntary Emissions Reduction Plus standard and the Voluntary Offset Standard), some are more stringent (the Gold Standard and the Climate Community and Biodiversity Standard), and some are less (the Voluntary Carbon Standard). 

The stringency of the standards depends on the viewpoint of the enforcer: whether voluntary markets should complement clean development mechanisms by accounting for more projects or whether the markets should mirror existing regulations. However, in order to be successful, a carbon offset standard must ensure “real, additional, and permanent” offsets with adequate accounting, monitoring, verification, registration, and enforcement standards.


Process Essentials: Major Sources of Emissionschart_percent_emissions.gif


Transportation


Transportation is the largest end-use contributor to greenhouse gas emissions in the U.S. Under the G. W. Bush Administration, the EPA initially refused to regulate automobile emissions themselves. States attempted to address this position by implementing their own regulations and suing EPA. Both attempts resulted in epic legal battles which the U.S. Supreme Court and then the Obama Administration resolved in favor of the states. On April 1, 2010, the EPA and the National Highway Traffic Safety Administration (NHTSA) announced a joint standard that tracked the California proposal. The standard calls for average fleet emissions of 250 grams of CO2 per mile by 2016. That equates to 35.5 MPG if the CO2 reductions are met entirely by improved fuel economy. Other measures that manufacturers can take to reduce emissions include deeper tint and more reflective paint.

EPA Must Regulate Automobile Emissions 

In Massachusetts v. EPA, 549 U.S. 497 (2007), several states and environmental organizations sued the EPA – demanding that the government regulate the four major greenhouse gases emitted by cars under the Clean Air Act, 42 U.S.C. § 7521(a) (1). The relevant section of the Act reads: 

“The [EPA] Administrator shall by regulation prescribe … standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare ....”

The EPA’s most potent argument was that “air pollutants” referred only to local air pollutants, like carbon monoxide, that directly threaten health or welfare. However, the Supreme Court found that the general injuries were nevertheless concrete enough to address and that “‘[w]elfare’ is defined broadly: among other things, it includes ‘effects on ... weather ... and climate.’ § 7602(h).” The EPA also argued that climate change science remained ambiguous, and that it would be premature to regulate greenhouse gases before the results were conclusive. The Court responded that the EPA could only abdicate its responsibility by making a scientific finding that greenhouse gases were not provoking climate change. The Court noted that greenhouse gases need only “reasonably be anticipated to endanger public health or welfare” to require regulation under the Clean Air Act.


CARB WARS

Consistent with Mass. v. EPA, the Obama Administration has adopted automobile emission standards for model years 2012-2016 and made the endangerment finding that the six major man-made greenhouse gases are pollutants under the Clean Air Act

Before the Supreme Court issued the Mass v. EPA decision, the Bush Administration refused to regulate greenhouse gases. In response, California attempted to adopt its own fuel emission standards to lower greenhouse gas emissions from new cars by 30 percent in 2016. Under the Clean Air Act (§ 209) only California may initially set automobile emission standards that differ from the Federal government. Other states may then adopt the standards set by the California Air Resources Board (CARB). Despite invariably granting California emission waivers (occasionally subject to conditions) since the inception of the Clean Air Act, in 2007 EPA rejected the new CARB standards. 

Even before EPA’s denial of the California waivers, automakers and dealers sued states that had adopted the CARB standards, arguing that state emission standards were preempted by Federal fuel economy standards. The first decision to issue on the matter, Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007), held that state emission standards were not preempted because they were different from standards that only addressed fuel economy. As an example of the difference, the California standards require higher paint reflectivity and darker tint to avoid the absorption of heat, whereas fuel economy standards only regulate mileage. In California and Rhode Island, automakers suffered a similar fate. Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151 (E.D. Cal. 2007), rehearing, 563 F. Supp. 2d 1158 (E.D. Cal. 2008); Lincoln-Dodge, Inc. v. Sullivan, 588 F. Supp. 2d 224 (D.R.I. Nov. 21, 2008). 

California simultaneously sued the “Big Six” automakers, seeking damages on the grounds that their unreasonable emissions of greenhouse gases constituted a public nuisance. California v. General Motors Corps, 2007 U.S. Dist. LEXIS 68547 (N.D. Cal.). California lost on a motion for summary judgment because the case was deemed a political question. The state eventually dismissed its appeal. See Controversies: Public Nuisance Claims for more on the subject.


 Electricity Production


Of all source emissions, electricity is the greatest contributor to U.S. greenhouse gases at 39 percent of the aggregate. Proposed cap-and-trade bills and EPA regulations under the Clean Air Act could have an enormous effect on the electricity sector.   Despite the lack of a comprehensive scheme, certain national and local policies address electricity emissions.  However, ten states in the northeast have joined the Regional Greenhouse Gas Initiative (RGGI), which binds them to 10 percent reductions in greenhouse gas emissions from power plants.  The initiative is binding under the states’ regulations and employs a cap-and-trade system to achieve compliance.  Renewable portfolio standards (RPS) have been adopted by over half the states, requiring a certain amount of electricity be generated by renewable sources by a goal year.  Other policies focus on energy efficiency, which would reduce electricity consumption.  For example, there are various incentives at the state and local levels for constructing Leadership in Energy and Environmental Design (LEED) certified buildings that employ energy efficient devices and insulation.  Another example is the Federal Energy Star rebate plan, which gives consumers tax breaks for buying energy efficient appliances from dishwashers to doors to geothermal heat pumps.  


 2003 Electricity Production by Source


Coal is the largest source of electric power in the U.S. because it is abundant and inexpensive, but it also emits more greenhouse gases per kilowatt-hour than any other major energy source.  After Massachisetts v. EPA, environmental organizations have been challenging permits given to coal plants because they do not account for greenhouse gases.  However, they have not been very successful thus far.  (See, e.g. Longleaf Energy Assoc., LLC Friends of the Chattahoochee, Inc. et al., 2009 Ga. App. LEXIS 787, overturning a decision that pulverized coal-fired power plants need to limit CO2 emissions.)  


Deforestation

Deforestation is a major source of emissions because of trees’ carbon sequestration capabilities. All plants absorb CO2 and release O2 in the process of photosynthesis. They store CO2 from the atmosphere in the form of carbohydrates that become part of their structure. Trees have more carbon-storing capability than other plants because of their mass. When trees are cut down, burnt, or otherwise die, they release the CO2. In a natural cycle, new trees replace the dead ones and reabsorb the CO2, but with deforestation, trees are eliminated from ecosystems and CO2 is released into the air. The Kyoto Protocol, the Copenhagen Accord, and the (unsuccessful) Waxman-Markey bill all attempt to reduce deforestation and improve our existing tree stock. 


Agriculture

Farms often replace forests in other parts of the world, and CO2 is released by deforestation. Tilling soil also releases CO2 and N2O stored in the ground. Another agricultural source of greenhouse gas emissions is livestock. Swine and cattle release enormous amounts of methane in their feces. Pure methane is also known as natural gas, and can be used to generate electricity and heat. Mechanisms currently exist to trap the methane produced by livestock although they are not in widespread use. 


Farms can produce fuels that displace gasoline consumption, sometimes reducing greenhouse gas emissions. For example, corn ethanol emits less greenhouse gases than gasoline when combusted in an automobile engine, but its life cycle emissions can be higher than gas depending on the land being used and its prior use. Cellulosic ethanol – which uses the entire plant as fuel – reduces CO2 emissions more significantly, but its processing costs are currently too high to make it economically viable. Sugarcane ethanol is an attractive alternative, but it is only produced in the tropics and may displace rainforest indirectly. 

Various methods for abating greenhouse gases and estimates of their relative costs are shown in the graph from McKinsey & Company. 


Process Essentials: The National Framework

The United States lacks a unified national policy concerning climate change. Most guidance at the national level comes from research-oriented statutes and the Clean Air Act. Many states have enacted their own statutes and regulations to address climate change. See 

Collaboration in Action. Increasingly, federal agencies are enacting their own policies and strategies concerning climate change adaptation. (See, for example, the draft National Fish, Wildlife & Plants Climate Adaptation Strategy, released for public comment on May 24, 2011.)


Research-Oriented Statutes

The National Climate Program Act of 1978, 15 U.S.C. §§ 2901-2908, was enacted to further the understanding of climate processes through data collection, analysis, and dissemination.  Although the goal was to facilitate appropriate responses, no regulatory action was recommended.

The Global Climate Protection Act of 1987, reprinted as a note to 15 U.S.C. § 2901,  acknowledged that “manmade pollution… may be producing a long-term and substantial increase in the average temperature on Earth.”  It listed goals, including increasing understanding and cooperation among nations to generate research and “work[ing] toward multilateral agreements.”  It provided for no regulatory measures.

The Global Climate Change Act of 1990, 15 U.S.C. §§ 29212931-2938, created a National Global Change Research Plan, furthering the research goals of the previous two acts.  Interestingly, the 1990 Act contained a provision which could be interpreted as acknowledging the power of courts or EPA to reduce greenhouse gas emissions: "[n]othing in this subchapter shall be construed, interpreted, or applied to preclude or delay the planning or implementation of any Federal action designed, in whole or in part, to address the threats of stratospheric ozone depletion or global climate change." Id. at § 2938(c).

The International Cooperation in Global Change Research Act, also of 1990, 15 U.S.C. §§ 2951-2953 encouraged multilateral research programs.

The Energy Policy Act of 1992, 42 U.S.C. §§ 13381-13388, required a report on “the feasibility and economic, energy, social, environmental, and competitive implications, including implications for jobs, of achieving a 20 percent reduction from 1988 levels in the generation of carbon dioxide by the year 2005 as recommended by the 1988 Toronto Scientific World Conference on the Changing Atmosphere.”  The 1992 Act also called for least cost energy strategies to eventually reduce greenhouse gases including prioritization of energy efficiency over new energy sources.  Despite the lofty goals, again no regulations were promulgated.

The Energy Policy Act of 2005, 42 U.S.C. § 13389, provided for more research as well as “deployment and commercialization of greenhouse gas intensity reducing technologies and practices.”  Many were less than impressed.  Senator John McCain said, "[This bill] won't assure the growing threat of global warming is addressed in any meaningful way ...."151 Cong. Rec. S9335, 9360.


The Clean Air Act

During the G.W. Bush administration, the EPA released a memorandum citing policy reasons why the Clean Air Act is not as suitable a regulatory scheme for greenhouse gases as a new Congressional Act could be. In the memo, EPA Administrator Stephen Johnson wrote, “I believe … the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases.”  Arguably, the Clean Air Act is least suited for regulation of stationary sources because there are so many in existence, and determining control technologies for sources will be administratively burdensome for the agency and more burdensome financially for industry than a cap-and-trade or carbon tax system would be.


In March, 2009, the EPA set the wheels in motion to reconsider the Bush Administration's decision not to regulate for greenhouse gas emissions. Responding to a deadline established by the Supreme Court in the case Massachusetts v. EPA, on April 24, 2009 the EPA proposed an endangerment finding that links man-made greenhouse gases to threats to public health and welfare. On June 23, 2009, the U.S. Chamber of Commerce petitioned the EPA for an "on the record" hearing to review data that the agency used to support its proposed finding that greenhouse gases threaten human health and welfare. In September 2009, two Senators sent a letter to the EPA asking for a delay in the endangerment finding, and in October a free-enterprise organization petitioned the agency to reopen the public comment period on the proposal, arguing that critical data used to formulate the plan have been destroyed and that the available data are therefore unreliable. 

On December 15, 2009, the EPA found “that greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.”  Fed. Reg. 66497.  The EPA listed several health effects, including heat wave mortalities, ozone pollution, flood-related issues, and allergies.  The welfare effects would adversely impact water, vegetation, animals, wildlife, weather, and climate. The EPA also addressed a host of criticisms, including accusations that it confounded health and welfare, that the science was uncertain, and that it should have considered policy impacts.

In response, a number of states and industry groups filed motions in court to remand the EPA's endangerment finding, based on the same argument about unreliable science. EPA responded in a motion filed in late April 2010, taking issue with the petitioners' argument that the agency is not giving adequate attention to their request for reconsideration, and on August 13, 2010, the EPA issued an order denying the petitions to reconsider the endangerment finding. The U.S. Chamber of Commerce promptly filed a lawsuit challenging the EPA's endangerment finding.

On April 10, 2009, the EPA proposed a regulation to require reporting of greenhouse gas emissions from all sectors of the economy. Updated information on the final rule as adopted (and subsequently amended) is available at the EPA's Greenhouse Gas Reporting Program website.

On April 1, 2010, the EPA announced greenhouse gas standards for motor vehicles applicable beginning in 2012 and gradually reducing emissions until 2016.  The standard calls for average fleet emissions of 250 grams of CO2 per mile in 2016, which equates to 35.5 MPG if the CO2 reductions are met entirely by improved fuel economy.  Several members of Congress introduced legislation disavowing the endangerment finding, trying to repeal it through legislation.  Others attempted to amend the Clean Air Act to suspend regulations for stationary sources like power plants (see Pending Legislation).  Stationary source regulation through the Clean Air Act would likely be burdensome as well as politically charged.  In a letter to Senator Rockefeller dated February 2, 2010, EPA Administrator Lisa Jackson announced her intention to begin regulating greenhouse gases from large stationary sources in 2011.  She was planning to phase in regulation for smaller sources through 2016 and beyond. Accordingly, the agency issued a final "tailoring" rule in May 2010, and issued preliminary guidelines for implementation in August 2010.

On December 10, 2010, the U.S. Court of Appeals for the District of Columbia ruled that the EPA could move forward with its plans to regulate greenhouse gases, and refused the petitioners' requests to stay the rulemaking while legal proceedings address the legality of such regulation under the Clean Air Act (Coalition for Responsible Regulation, et al. v. Environmental Protection Agency). On January 11, 2011, EPA announced that the use of biomass would be exempt from new greenhouse gas regulations, essentially declaring this as a "clean energy" source.

After a long delay, in March 2012 the EPA issued reguations concerning carbon dioxide emissions from new power plants,
following up on a settlement the agency reached in December 2010 after
the Massachusetts v. EPA litigation. The proposed rule would require all new power plants to meet the same standard of 1,000 lbs of CO2 per megawatt hour, regardless of the fuel. Compliance with this standard will be far easier for natural gas plants than for coal-fired power plants; the latter will likely need to develop and implement carbon sequestration techonology to comply with the new rule. In April 2013, however, the EPA announced that it was withdrawing the regulations for power plants, as described in this Legal Planet analysis dated May 24, 2013.

In June 2012, the U.S. Circuit Court of Appeals for the District of
Columbia soundly rejected the legal challenges to four actions by the
EPA regarding regulation of greenhouse gas emissions under the Clean Air
Act. These include: the "timing" rule (which requires that new controls
of greenhouse gas emissions from stationary sources be triggered on
Jan. 2, 2011, when the new motor vehicle standards went into effect);
the "tailoring" rule (which interprets the CAA to apply greenhouse gas
emissions limitations only to major polluters); the "endangerment" rule
(EPA's initial decision, ruling that greenhouse gas emissions are
harmful); and the "tailpipe" rule (adopting new standards for car and
light truck emissions). In December 2012, the full D.C. Circuit voted to deny a request to rehear this argument, but the court's split decision sets the issue up for possible review by the U.S. Supreme Court, as requested in several petitions filed by industry groups in the early months of 2013.

For a comprehensive summary of the decision and its aftermath, see these Legal Planet Posts:

See also a special edition of the UCLA Journal of Environmental Law and Policy on using the Clean Air Act to address greenhouse gas emissions, which is summarized in this Legal Planet post of 4/24/12.

In the meantime, in July 2011, a federal district court judge sided with environmental groups and ruled that Section 231 of the Clean Air Act requires the EPA to decide whether airline emissions pose a threat to human health or welfare. The EPA argued that the endangerment ruling was a discretionary act, but Judge Kennedy of the U.S. District Court for District of Columbia wrote that this stance "would defeat the purpose of the act by allowing EPA to shirk its duty to combat air pollution." The case is Center for Biological Diversity v. U.S. EPA, C.V. 10-00985.


Process Essentials: The International Framework


United Nations Framework Convention on Climate Change (UNFCCC)logo.gif


 

The UNFCCC was designed to coordinate intergovernmental efforts to address climate change.  Its goals include the dissemination of climate change information, such as that gathered by the IPCC reports, the mitigation of climate change via greenhouse gas reduction, and adaptation to the impacts of climate change.  The UNFCCC originated at the Earth Summit in 1992, and entered into force in 1994.  193 countries have ratified the Convention as of April 2010.

The Conference of the Parties (COP) is the supreme decision making body of the UNFCCC and comprises representatives from every nation that has ratified the Convention.  Every year since 1995, a COP has met in a different city to negotiate climate change efforts.  The 2010 COP will be held in Mexico.  The Kyoto Treaty was the result of COPs.


Intergovernmental Panel on Climate Change (IPCC)

The IPCC is an international scientific body that evaluates the scientific, technological, and socio-economic related risks of human-induced climate change. The IPCC has published four assessment reports as of 2009, with a fifth slated for 2015. The 2007 fourth assessment report concluded that increased greenhouse gas emissions from human activities are very likely (90-99 percent) the cause of global warming. The IPCC shared the 2007 Nobel Peace Prize with Al Gore for its report.


Kyoto Protocol

The Kyoto Protocol sets binding greenhouse gas emission reduction targets for 37 developed nations and the EU.  The targets vary by nation, but average a 5 percent reduction from 1990 levels between 2008 and 2012.  Developing nations, including China and India (the first and fourth largest emitters in the world respectively), are not bound to reduce emissions under the Protocol.  Further, the U.S. (the second largest emitter) refused to ratify the treaty on the grounds that developing nations were not bound and that its ratification would stymie economic development.   Nevertheless, the Kyoto Protocol has been the most successful international attempt to slow greenhouse gases to date.        

The Kyoto Protocol incorporates several mechanisms that allow countries to reduce emissions abroad in order to meet their national obligations.  Many of the mechanisms are pertinent to proposed cap-and-trade bills in the U.S.  Because no such bill has passed as of April 2010, the mechanisms are explained as they exist under the Kyoto Protocol with comparisons made to how they would function under domestic cap-and-trade.

Both domestic cap-and-trade bills and the Kyoto Protocol cap national emissions.  However, under cap-and-trade, companies trade emissions domestically, and under the Protocol, countries can trade emissions internationally.  Emissions can be traded directly between countries, or a country can receive credit from investing in a project abroad through Joint Implementation , Clean Development Mechanisms, and Reducing Emissions from Deforestation and Forest Degradation (REDD).

If two nations are both subject to Kyoto Protocol caps, Joint Implementation allows one nation to meet its reduction target in another nation where emission reductions can be achieved less expensively.  The reductions count as “emission reduction units” toward the foreign nation which is implementing the project.  Whereas the Protocol requires countries to directly invest in emission reduction projects for credit, national cap-and-trade allows companies to invest indirectly by simply purchasing allowances to pollute more, which forces the selling company to pollute less.


Clean Development Mechanism (CDM) is a greenhouse gas reduction project implemented in a developing nation with funding from a developed nation.  CDMs count as a “certified emission reduction” toward the developed nation’s target.  CDMs reduce overall world emissions, generally at lower costs than domestic projects.  They are slightly more controversial than joint implementation because CDM projects are performed in countries without emission reduction targets, making it more difficult to quantify results against the status quo.  The equivalent under domestic cap-and-trade would be clean power investment in a foreign country as opposed to merely buying credits from another regulated company.

Soil and forests have proven increasingly important for sequestering carbon.  Preventing land use change like deforestation provides the quickest impact on greenhouse gas emission rates because plants and forests release carbon dioxide almost immediately upon being cut down, especially if burned.  Reducing Emissions from Deforestation and Forest Degradation (REDD) is arguably the most important Kyoto mechanism.  Projects to maintain carbon sequestration such as forest protection and reforestation count toward developed nations’ reduction targets as “removal units.”  Land use changes are difficult to measure and somewhat controversial.  See Controversies: Agricultural and Forestry Offsets and Process Essentials: Major Sources of Emissions: Agriculture, Deforestation.


Adaptation Fund

The Adaptation Fund generates money used to protect vulnerable member-nations from climate change threats like rising sea levels. The Adaptation Fund Board was created in the 2008 COP in Poznań, Poland, to set up the necessary financial, administrative, and legal framework for the Adaptation Fund to operate.


Copenhagen Accord

The most recent COP took place in Copenhagen from December 7 to 18, 2009. Member nations had announced intentions to draw up a successor-treaty to the Kyoto Protocol requiring emission reductions beyond 2012, but negotiations were strained due to conflicting viewpoints. The US maintained the position that emerging economies, like China (the largest present emitter), must commit to mandatory reductions for it to agree. In the midst of impressive economic growth, China was only willing to reduce its energy intensity (emissions per unit of GDP). Many developing countries were adamant about a continuation of binding commitments like the Kyoto Protocol, fearing that they will be most afflicted by climate change after playing the smallest role in generating greenhouse gases. On December 14, the African bloc temporarily walked out on the talks, threatening to abandon the meeting.  

The result was the non-legally binding Copenhagen Accord, which “took note” of 2º C as the maximum temperature increase the signatories would tolerate.  The Copenhagen Accord hopes to reduce greenhouse gas emissions through voluntary commitments, “on the basis of equity and in the context of sustainable development.”  Fifty-five countries (generating 78 percent of global emissions) submitted greenhouse gas reduction pledges.  The parties also agreed to reconsider whether to revise the tolerable temperature increase to 1.5º C by 2015.  

However, there are serious doubts whether the Accord will achieve the reductions necessary to avoid drastic temperature increases.  The IPCC Fourth Assessment Report predicts that a 25-40 percent reduction in global emissions from 1990 levels by 2020 will have about a 50 percent chance of stabilizing temperatures at a 2º C increase by 2050.  Few countries aim to achieve such substantial reductions, with the European Union, several of its member-nations, Japan, and Russia as notable exceptions.  

The U.S. provisionally committed to reducing emissions by 17 percent below 2005 levels by 2020, to be adjusted for whatever climate change legislation the country can pass.  That is, the U.S. commitment depends entirely on domestic climate change legislation.  The European Union agreed to continue its Kyoto trajectory by reducing emissions between 20 and 30 percent below 1990 levels by 2020.  The U.S. would have to nearly double its 2020 commitment if it used 1990 as a baseline, rather than 2005.  

China agreed to reduce its greenhouse gas intensity (emissions per unit of GDP) 40-45 percent from 2005 levels by 2020, significantly increase its forest coverage, and increase non-fossil fuel energy consumption by 15 percent. At China’s current rate of economic growth, these steps may not reduce its absolute emissions, but rather allow them to increase.  

Also of note, a draft decision was issued on Reducing Emissions from Deforestation and Forest Degradation (REDD), with a final agreement expected by the end of 2010.  Thus far, the parties have agreed to general principles, such as safeguarding country rights and natural forests, continued sustainable development, a phase-in approach for implementation, and some sort of carbon monitoring although the methodology is still being debated.  Developed countries have announced their intent to finance projects through a new Copenhagen Green Climate Fund, but specific commitments on monetary issues as well as many other specifics remain to be negotiated as of early April 2010.  

COP 16 will address these and many other issues between November 29 and December 10, 2010 in Mexico.  Interim talks will be held in Bonn between May 31 and June 11.


Process Essentials: Incorporating Climate Change into Environmental Laws and Regulations


Endangered Species and Climate Change


According to recent judicial decisions, federal agencies must consider the effects of climate change, including precipitation changes and habitat destruction, when issuing biological opinions on endangered fish (Natural Resource Defense Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007); Pacific Coast Federation of Fishermen’s Assoc. v. Gutierrez, 606 F.Supp.2d 1122 (E.D. CA 2008)). 


polar_bear.jpg


 

The polar bear has also been listed as a threatened species, partially because of declines in sea ice due to global warming. Environmental groups have campaigned for the Department of the Interior to use the polar bear status to regulate greenhouse gases on a national level on the grounds that local measures are not sufficient to protect the polar bear’s habitat.

Although the Department of the Interior concedes that greenhouse gases are endangering wildlife, it is only considering adaptation measures while leaving mitigation for others to handle.

When the polar bear was listed as "threatened" in in May 2008, the decision was accompanied by a Rule 4(d) order, which limited the measures and protections necessary for the species recovery. In the case of the polar bear, Secretary Kempthorne ruled that the listing was not to be used to regulate greenhouse gas emissions. The Obama administration, while reversing other Bush administration actions related to the ESA, left this rule intact. (The most current special rule regarding the polar bear's status was issued in February 2013.)

Interior Secretary Ken Salazar declared, “The Endangered Species Act is not the proper mechanism for controlling our nation’s carbon emissions. Instead, we need a comprehensive energy and climate strategy that curbs climate change and its impacts.”

In April 2011, this rule was the subject of a federal court hearing in the District of Columbia, which focused on whether the agency complied with the National Environmental Policy Act in making this decision. At the hearing, Judge Sullivan indicated that he was considering requiring further environmental review of the Rule 4(d) application to the polar bear listing. "Can a 4(d) rule be reasonable even if it does not directly address the primary threat to the species? Can that be reasonable?" Sullivan asked. "Really, the elephant in the room is greenhouse emissions." On October 17, 2011, Judge Sullivan vacated the 4(d) rule, ordering the FWS to take further steps to implement the National Environmental Policy Act (NEPA), but he also upheld the agency's determination that the ESA is not the appropriate vehicle to regulate greenhouse gas emissions. While the NEPA review is performed, the terms of the original final rule will remain in place.

Several challenges to the listing decision were resolved in a consolidated case before the D.C. Circuit Court of Appeals, which issued a ruling upholding the District Court decision on March 1, 2013. For an analysis of the ruling, see this Legal Planet commentary by Megan Herzog.

Coming at the decision from a different perspective, in May 2011,
several Alaska Native groups, along with the state of Alaska and a consortium of oil development interests, sued the FWS to challenge the designation
of critical habitat for the polar bear under
this listing. The groups cited concerns about the economic impacts of
the land designations, arguing that the critical habitat designation
would "not address the primary threat to polar bears, the loss of sea
ice due to climate change." In January 2013, a federal judge in Alaska vacated the FWS' designation of 187,000 square miles of the North Slope as critical habitat for the polar bear, concluding that the designation did not follow the mandates of the ESA to include physical and biological features necessary for the survival of the species. He did not, however, say that designation of critical habitat as a result of climate change was illegal.

A 2011 white paper recommended policy changes to adapt implementation of the Endangered Species Act in response to climate change. See the summary at Legal Planet, or download the paper here.


NEPA and Climate Change

The White House Council on Environmental Quality recently released guidelines on taking climate change and greenhouse gas emissions into consideration when conducting NEPA reviews. The guidelines require an in-depth analysis of greenhouse gas emissions if a proposed federal action would produce over 25,000 metric tons of CO2 equivalent per year. The guidelines also encourage federal agencies to consider the CO2 emissions over the lifetime of a project. For more information on NEPA review, see our NEPA page.


Oil and Gas Leasing and Climate Change

Environmental groups have recently begun challenging the Bureau of Land Managements system for granting oil and gas leases, arguing that the BLM’s policies do not consider the effect of oil and gas drilling on climate change. A recent settlement resulted in the suspension of 38,000 acres of oil and gas leases in Montana while the BLM evaluated the likely effect of oil and gas operations on climate change. The BLM initially suspended all oil and gas leasing in Montana, North Dakota, and South Dakota while it conducted this evaluation, but the agency announced in August 2010 that the likely effects would be minimal and that development would continue. For an op-ed supporting this outcome, see "Coal leasing should be allowed to proceed," Casper Star Tribune, 3/21/11.


Controversies: Climate Change – Fact or Fiction?

The world is definitely getting warmer. Between 1906 and 2005, the average global temperature rose 1.01 to 1.66 degrees Fahrenheit.

ipcc_faq-3-1-figure-1-l.png
There are definitely more greenhouse gases in the air now than before the industrial revolution. Carbon dioxide atmospheric concentrations have risen to 388 ppm as of 2009, up from the 270-285 ppm range between 1 and 1750 AD. 

The greenhouse effect definitely exists. The Earth is 60°F warmer at sea level than it is 17,000 feet up above the atmosphere because of the greenhouse effect. Without a greenhouse effect, the Earth’s temperature would swing widely from night to day. At approximately the same distance from the sun as the Earth, the moon’s temperature rises to 230°F in the sun and falls to negative 290°F in the shade – averaging 0°F. 

Although no credible studies question the existence of the greenhouse effect, global warming over the past century, and an increase in human greenhouse gas emissions, the question is whether they are related and to what degree. However, some of skeptical groups, including JunkScience, have been accused of creating the debate over climate change at the behest of energy companies like Exxon Mobil. Regardless, the debate continues, with some well-regarded scientists like Dr. William Gray of Colorado State University questioning the inherent validity of climate change models and whether we are merely experiencing natural variations in the climate. 

Science is rarely 100 percent certain about cause and effect, but the IPCC concluded in its 4th Assessment Report that global warming was very likely (90-99 percent) a result of human greenhouse gas emissions. See page 17 of the Synthesis Report. 

Climate change aspects like precipitation and wind patterns are more difficult to model than temperature changes, and the IPCC report only said that these factors were likely (greater than 66 percent) a result of human greenhouse gas emissions.


Controversies: Common Law Claims

Some environmental groups and members of the public have grown frustrated with the lack of regulation, leading them to take up the matter in the courtroom. Multiple suits have been filed accusing large-scale greenhouse gas emitters (like utilities, chemical companies, and automobile manufacturers) of emitting unreasonable amounts of greenhouse gases, which endanger public, health, safety, and welfare, thereby constituting a public nuisance. 

The initial trend of dismissing these cases on standing and political questions grounds appears to be reversing, after appellate decisions in the Second and Fifth Circuit held that plaintiffs had standing to sue power companies for their contribution to greenhouse gas.

In Connecticut v. American Electric Power, 582 F.3d 309, (2d Cir. 2009) the Second Circuit allowed a citizen suit against several power companies to proceed on the grounds that greenhouse gas emission damage to public health and welfare presented a public nuisance. A public nuisance is defined by the Restatement (Second) of Torts § 821B (1) (1979) as “an unreasonable interference with a right common to the general public.” The district court had ruled that a decision to enjoin public utilities from emitting greenhouse gases was legislative in nature and better suited for Congress and the President than the court system. 

An appeal was argued in 2006 before Judge Sotomayor’s panel on the Second Circuit, but no decision was issued for three years until she departed for the Supreme Court. Then, the two remaining judges on the panel issued an 139-page opinion holding the case justiciable as a public nuisance in the tradition of Missouri v. Illinois, 200 U.S. 496 (1906) and Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907). Further, the court held that state attorneys general had standing to sue under parens patriae (quasi-sovereignty) and proprietary grounds which appears consistent with Mass. v. EPA. The judges proceeded to find that the City of New York and a few land trusts also had standing on proprietary grounds. Mass. v. EPA did not specifically address non-state standing, and some believe this extends standing beyond the parameters previously indicated by the Supreme Court. Moreover, the decision was issued before the EPA had made its final endangerment finding, issued a final rule on motor vehicle emissions, and announced an intention to regulate stationary sources. Those regulations present new issues of preemption that the Second Circuit explicitly declined to address because they were not final.

The Supreme Court accepted the case for review in 2010. In August 2010, the Obama Administration surprised environmentalists by filing a brief in support of the the defendants, saying that the EPA's newly finalized regulations on greenhouse gases have displaced that type of common-law claim. In February 2011, three Republican congressmen filed an amicus brief supporting the administration's position, characterizing the case as a "non-justiciable political question." For a summary of the parties' positions, see this 4/18/11 post at Legal Planet; click here for a recap of the oral arguments.

On June 20, 2011, the Supreme Court issued its ruling in American Electric Power v. Connecticut. As legal experts had predicted, the court rejected the public interest lawsuit, declaring that the common law of nuisance had--in this context--been "displaced" by the EPA's authority to regulate greenhouse gas emissions under the Clean Air Act and rejecting the states' claim (embraced by the Second Circuit) that preemption wasn't applicable until EPA regulations were final.

In Comer v. Murphy Oil, 585 F.3d 855, (5th Cir. 2009) homeowners affected by Hurricane Katrina sued oil, chemical, and power companies. The homeowners alleged that defendants’ greenhouse gas emissions increased the severity of the hurricane. Comer was also dismissed by a district court and reversed by the appellate court. A Fifth Circuit panel held that the public nuisance claim could not be dismissed on standing grounds at the pleading stage. However, supplemental claims of unjust enrichment, conspiracy, and fraud were dismissed for lack of credibility. The Fifth Circuit has since agreed to re-hear the case en banc. Despite surmounting the initial hurdle of standing, it will be difficult to legally prove that greenhouse gases caused a hurricane to decimate house. 

Kivalina v. ExxonMobil Corp., another public nuisance claim, was dismissed by a District Court even though it seemed more amenable to judicial resolution than AEP or Comer. Kivalina is an Inuit village in Alaska protected from the ocean, its waves, and storms, by a stretch of sea ice. The complaint alleged that the ice is melting into the ocean which will inevitably cause the village to be decimated by storms and submerged. They are seeking damages for relocation of their village. Because the potential damages are so discrete and could be clearly linked to global warming, the Kivalina appear to have a strong case. However, the District Court held the claim nonjusticiable due a lack of “judicially manageable and discoverable standards.” The Native American Rights Fund appealed the decision to the Ninth Circuit Court of Appeals, which upheld the district court decision in 2012, ruling that the Clean Air Act and the U.S. EPA have jurisdiction over climate change issues. In May 2013, the U.S. Supreme Court declined to review the Ninth Circuit decision.

A law review article by Shi-Ling Hsu explores a hypothetical claim similar to that of the Kivalina. He considers the merits of a public nuisance claim on behalf of the entire Inuit population against the U.S. electricity sector. Hsu acknowledges the difficulty of the hypothetical case, but if the Kivalina win their case on appeal, the larger class action might follow. 

In April 2011, a group of attorneys representing chldren and young adults in every state and Washington, DC, announced plans to file lawsuits throughout the country asking the courts to declare the atmosphere a "public trust" worthy of special protection. Follow the progress of this action and view the state-specific complaints by visiting the plaintiffs' website, Our Children's Trust.


Controversies: Clean Coal

Carbon Capture and Sequestration (CCS) is the removal of CO2 from the atmosphere and its indefinite storage. For example, CO2 can be captured from coal plants by scrubbers, and then sequestered beneath the ground in aquifers and old oil reservoirs. However, CO2 could escape from aquifers and oil reservoirs if not carefully planned. CO2 can also be stored in plants and soil. All plants from trees to ocean algae are capable of sequestering CO2 for the duration of their lives. Biochar, a charcoal produced by pyrolisis of biomass (the chemical decomposition of heating a condensed substance), is an attractive CCS option because it holds the carbon under the soil for a much longer cycle than regular small plants. “[S]oil scientist Johannes Lehman estimated in Nature that simply converting residues from commercial forestry, fallow farm fields and annual crops to charcoal could compensate for about a third of US fossil-fuel emissions.” National Geographic, September 2008. 

Clean coal refers to coal processed in a way that washes out impurities, scrubs off the sulfur dioxide content, and sequesters carbon dioxide and other flue gases employing CCS. Some debate exists as to the viability of clean coal and whether it should actually be called “clean,” as other renewable sources like wind and solar may still be more environmentally friendly. For example, Greenpeace reports that clean coal is not financially feasible, diverts money from investments in proven technology like renewable energy and energy efficiency, wastes energy, and cannot be available for widespread use until 2030. 

Some people doubt the viability of CCS because of cheaper emission reduction strategies, like renewable energy and energy efficiency, and the losses of power and CO2 emissions during the sequestration process. See the chartprepared by the IPCC. 

Despite the critics, companies and governments are proceeding with clean coal experiments. Vattenfall, a Swedish power company built a pilot clean coal plant in 2008 in East Germany. The plant employs a technology called oxyfuel that removes nitrogen and other gases from the air where coal is burnt, leaving only oxygen and CO2. By burning the coal in that artificial atmosphere, the byproducts are almost entirely water and CO2. After the water is separated, the CO2 can be bottled and pumped underground. The coal industry, including the American Coalition for Clean Coal Electricity, is campaigning strongly for clean coal technology subsidization. The Department of Energy (DOE) had agreed to spend nearly $1 billion on a clean coal plant in conjunction with FutureGen, an alliance of coal and oil companies. However, the DOE pulled the project, rescheduling for 2015. 

Another method of using coal is conversion to a cleaner gas through Integrated Gasification Combined Cycle (IGCC). The coal is exposed to steam and high pressures which break apart the coal compounds, producing syngas and byproducts. The more harmful compounds like mercury and sulfur dioxide are mostly filtered out. The syngas is then treated further and powers a steam turbine or is converted into a liquid transportation fuel. 

For more on CCS and coal in general see our upcoming page on Coal Development. 


Controversies: Regulatory Issues


Regulatory Structures

While many experts feel that the Clean Air Act is not the ideal structure for regulating greenhouse gas emissions, both politicians and the public are divided on what alternative would be better suited to the task. 

Cap-and-trade and carbon tax plans are two alternative systems under consideration. Both employ market approaches to let companies adjust their approaches based on cost. Cap-and-trade advocates argue that the system’s hard cap and reliance on market forces make it the most effective and economical means of reducing greenhouse gases, and they point to the success of the sulfur cap-and-trade system. Carbon tax advocates argue that a tax is simpler and more difficult to evade, making it the better system. 

Under cap-and-trade, allowances can be sold by a party for whom reductions would be relatively expensive to a party for whom reductions would be relatively cheaper. Thus, overall emissions would be reduced at the same rate at the lowest economic cost. Detractors say this calculus ignores the transactional costs which make allowance trades less beneficial than the cost of implementing the system would balance. Furthermore, offsets under a cap-and-trade might allow companies to feign greater emission reductions than they actually achieve. 

In theory, a carbon tax could be simpler than a trading system. However, the U.S. tax code is far from simple, and numerous loopholes, exceptions, and offset provisions would probably make their way into a carbon tax. Nevertheless, its enforcement could be easier. A carbon tax could be implemented at the source, such as where coal or petroleum is taken out of the ground. The tax would then be dispersed throughout the economy as market forces pass the tax on to manufacturers and consumers. 

A carbon tax imposes a certain dollar or percentage tax per unit of CO2e, making it unclear exactly how much greenhouse gases will be reduced. Therefore, environmentalists might be concerned that the tax will be ineffective and industries might be concerned that the tax will change consumption patterns too quickly for them to adjust. However, carbon tax proposals can be designed to increase at a given rate until a certain reduction is achieved. 

The greatest advantage of cap-and-trade may be that it is not called a tax. Even though a carbon tax could be revenue neutral by simply displacing part of the income or sales tax, it is not as politically popular as cap-and-trade. 


Allowance Distributions

The distribution of allowances has been controversial. First, some believe the allowances should all be sold to raise revenue at the expense of the utilities industry, but others believe these sales would cripple American households and industry by driving up the price of electricity. The unsuccessful

Waxman-Markey bill proposed a combination of auctions and distribution – distributing 75% of the allowances through 2026 and shifting to an emphasis on auction thereafter. 

Assuming that some of the allowances would be granted to utilities, coal, natural gas, and hydro power companies will disagree whether allowances should be distributed based on historic emission rates or historic power outputs. Whereas hydropower generates few emissions, coal generates far more. Therefore, coal-reliant utilities would prefer allowances be awarded on historic emission rates. The Waxman-Markey bill proposed a combination of these two methods: half of the allowances would be distributed based on emission rates and the other half based on power output. See Pew Center on Global Climate Change and Congress Matters for more details 


Import Tariffs

With either cap-and-trade or a carbon tax, it could be helpful to impose import tariffs on products from nations without greenhouse gas emission regulations in order to protect the U.S. economy. 

The Waxman-Markey bill included a provision called an International Reserve Allowance Program that effectively acts as a tariff system to avoid a competitive disadvantage from nations that do not adopt similar emission reduction measures. The program would require imports from countries with less restrictive emission regulations to purchase emissions allowances that cost as much as the U.S. allowances. The program would not apply to the least developed of developing nations, nations responsible for less than 0.5 percent of global GHGs, or nations that adopt emission-reduction plans similar to the U.S. 

President Obama disparaged this section of the bill. According to the New York Times, he “warned that trade sanctions based on the extent to which other countries curbed carbon dioxide emissions might be illegal and counterproductive.” 

Many others disagree, contending that trade sanctions are necessary to force other nations to follow the U.S. example and protect U.S. manufacturing if other nations refuse to comply. 


Agricultural and Forestry Offsets

Title V of the Waxman-Markey bill would have provided offset credits for the reduction, avoidance, or sequestration of greenhouse gases from domestic agricultural and forestry sources in lieu of emission reductions from sources like coal plants. Examples include reduction of nitrogen fertilizer use, reduction of greenhouse gas emissions from livestock manure via methane capture or dietary modifications, reforestation, and conservation of grasslands and forests. Critics have taken issue with the double standard that farms’ greenhouse gas emissions are not capped while farmers can earn money from reducing those sizable emissions. Further, there has been disagreement over whether the EPA or the U.S. Department of Agriculture (USDA) should be responsible for regulating offsets – the assumption being that the USDA will give farmers wider latitude than would the EPA. 


Collaboration in Action: State Climate Change Plans

Several states have introduced legislation to control climate change through greenhouse gas emissions standards. 


California

California was the first state to release a draft plan for adapting to climate change. the California government worked closely with local groups to develop an adaptation plan suitable for local needs. The draft plan can be read here.  In December 2010, California adopted the most comprehensive set of rules on carbon dioxide and other greenhouse gas emissions. And, in the fall of 2011, the state adopted the nation's first regulatory program based on cap-and-trade. See "California adopts first cap-and-trade program," LA Times, 10/21/11; see also this post with links on Legal Planet (10/20/11).

The cap-and-trade program drew the ire of environmental justice groups, who filed a lawsuit claiming that the state did not comply with its environmental policy review statute (Assoc. of Irritated Residents v. Calif. Air Resources Bd., CPF-09-509562). The plaintiff group in that lawsuit claims that a cap-and-trade system will unfairly harm low-income communities by allowing polluters to avoid local limits on greenhouse gas emissions by purchasing credits or offsets. Depending on the outcome of that lawsuit, the start of the carbon market in California may be delayed beyond its scheduled start date of January 1, 2012.


Vermont

On June 4, 2010, Vermont enacted a bill that simplifies the process for obtaining renewable energy project permits. It also offers reforms to the solar tax incentive program and strengthens the relationship between Vermont and a hydroelectric company Hydro Quebec. 


Maryland

Maryland enacted four new pieces of climate change legislation on May 20, 2010. Two of the bills deal with electric vehicles. HB 469 provides for a credit for electric vehicles that offsets the state’s motor vehicle excise tax. HB 674 allows electric vehicles with Maryland permits to use the high occupancy vehicle (HOV) lanes on federal highways within the state. HB 464 lengthens the termination date for the clean energy production tax credit and the date by which qualified energy production must begin to claim the credit. Electricity from solar energy must have a 0.5 percent carve-out by 2016 under Maryland’s Renewable Energy Portfolio Standard under SB 277


West Virginia

West Virginia’s Diesel-Powered Motor Vehicle Idling Act went into effect June 11, 2010. Its goal is to reduce emissions by limiting the length of time a diesel truck can idle. Diesel trucks weighing more than 10,000 pounds can idle up to 5 minutes per hour. Violations will result in fines between $150 and $300. The exemptions from the idling limit will decrease as idle-reduction technology becomes more widely available. 


Climate Change Legislation in the 113th Congress

New information will be added as the Congress takes action.

 


Links



Global Climate Law Blog
Warming Law blog
Climate change litigation chart
Intergovernmental Panel on Climate Change

United Nations Framework Convention on Climate Change
Pew Center: American Clean Energy and Security Act
Pew Center: American Power Act


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