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 Center3-4 March 2012

Samuel A. BleicherAdjunct Professor, Georgetown University Law School

J.D., Harvard Law SchoolPrincipal, The Strategic Path LLC

[email protected]

updated for presentation at the Indian Institute of Technology, Indore

16 December 2013

“An Inconvenient Truth”

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OUTLINEI. 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 –

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I. Effects of Global Climate Change

Consequences of Increased GHG

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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

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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-global-warming/276; http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf

I. Effects of Global Climate Change

Consequences of Increases in GHG (continued):

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

I. Effects of Global Climate Change

“Runaway Climate Change” – 1. Natural Acceleration

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―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)

I. Effects of Global Climate Change

“Runaway Climate Change” – 2. Methane in permafrost

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―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-fuels-climate-change-worries.html?hp

I. Effects of Global Climate Change

“Runaway Climate Change” – 2. Methane in permafrost

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I. Effects of Global Climate Change

“Runaway Climate Change” – 2. Methane in permafrost

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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.

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

II. Causes of Global Climate Change

The Role of GHG in the Atmosphere

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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/

II. Causes of Global Climate Change

Increasing GHG in the Atmosphere

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II. Causes of Global Climate Change

Increasing CO2 in the Atmosphere

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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

II. Causes of Global Climate Change

Human-caused GHG Emissions

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II. Causes of Global Climate Change

Cumulative Character of CO2 (and other GHGs)

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II. Causes of Global Climate Change

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)

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II. Causes of Global Climate Change

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-for-

pound 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-exceed-estimates-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)

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II. Causes of Global Climate Change

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

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II. Causes of Global Climate Change

Cumulative Character of CO2 (and other GHGs)

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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.

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III. Sources of GHG Emissions

Sources of CO2 Emissions by Country

2009 Country & State Rank for Gross Domestic Product (GDP)

Overall Rank by CountryRank by US State or Country GDP (in millions of USD)

World 58,133,309

1 European Union 16,374,529

1 2 United States 14,119,000

2 3 Japan 5,068,996

3 4 People's Republic of China 4,985,461

4 Germany 3,330,032

5 France 2,649,390

6 United Kingdom 2,174,530

7 Italy 2,112,780 [This page 74.8%]

California 1,911,822

8 5 Brazil 1,573,409

9 Spain 1,460,250

10 6 Canada 1,336,068 43,457,463

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III. Sources of CO2 Emissions

Sources of CO2 Emissions by Country

2009 Country & State Rank for GDP page 2

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 This page:

17 12 Turkey 617,099 6,831,957; 11.8%Pennsylvania 549,565

18 13 Indonesia 540,277 19 14 Switzerland 500,260

New Jersey 480,641Ohio 472,344 Both pages:

20 Belgium 468,522 50,289,420; 86.6%

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III. Sources of GHG Emissions

Growth in Sources CO2 Emissions by Country

Country Rank for GHG Emissions (billion metric tons)

Annual 2010 Growth* GHG/capita Cumulative*

MtCO2e % 1999-2005 2010 1850- 2005

World 43,967 100.0 28.3 % 6.5 1,169,100

China 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.362http://www.wri.org/our-work/project/cait-climate-data-explorer

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III. Sources of GHG Emissions

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://legal-

planet.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

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

III. Sources of GHG EmissionsEnergy Consumption and Inefficiency - US

[Grey is wasted energy]

[Sources of energy]

[Uses]

[Wasted energy 57.8%]

[Used energy 42.2%]

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http://www.mckinsey.com/locations/greaterchina/mckonchina/reports/china_green_revolution_report.pdf April 2009

III. Sources of GHG Emissions

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

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)

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The Emissions Gap Report 2013, A UNEP Synthesis Report November 2013 http://www.unep.org/publications/ebooks/emissionsgapreport2013/

IV. Controlling GHG Emissions

Counteracting the Increase in GHG

Mitigation costs will be counteracted by near-term co-benefits (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/5287678-1226014527953/WDR10-Full-Text.pdf 26

IV. Controlling GHG Emissions

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

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IV. Controlling GHG Emissions

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 self-serving 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

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IV. Controlling GHG Emissions

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.

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IV. Controlling GHG Emissions

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 tradingprogram. 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)

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IV. Controlling GHG Emissions

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%2010-

K%202010.pdf

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IV. Controlling GHG Emissions

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-working-

on-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-linked-to-china.php

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IV. Controlling GHG Emissions

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

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The Emissions Gap Report 2013, A UNEP Synthesis Report November 2013

http://www.unep.org/publications/ebooks/emissionsgapreport2013/

IV. Controlling GHG Emissions

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

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The Emissions Gap Report 2013, A UNEP Synthesis Report November 2013 http://www.unep.org/publications/ebooks/emissionsgapreport2013/

IV. Controlling GHG Emissions

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.

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The Emissions Gap Report 2013, A UNEP Synthesis Report November 2013 http://www.unep.org/publications/ebooks/emissionsgapreport2013/

IV. Controlling GHG Emissions

Latest UN Data and Projections (continued 3)

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

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IV. Controlling GHG Emissions

Latest UN Data and Projections (continued 4)

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/

The Emissions Gap Report 2013, A UNEP Synthesis Report November 2013 http://www.unep.org/publications/ebooks/emissionsgapreport2013/

V. US Congressional Action on GHGs 2009 –

The Politics of Climate Change

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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

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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

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V. US Congressional Action on GHGs

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

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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

V. US Congressional Action on GHGs

No Progress in the 112th and 113th Congresses

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)

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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‖

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VI. Authority to Regulate GHG Under the CAA

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 inanalyzing the data;

(C) the major legal interpretations and policyconsiderations 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

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VI. Authority to Regulate GHG Under the CAA

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

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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

VI. Authority to Regulate GHG Under the CAA

Judicial Review of CAA Rulemaking (continued)

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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

VI. Authority to Regulate GHG Under the CAA

Judicial Review of CAA Rulemaking (continued)

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VI. EPA Authority to Regulate GHG Under the CAA

Judicial Review of CAA Rulemaking (continued)

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‖

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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

VII. Massachusetts v. EPA, 200 US 321 (2007)

Background - EPA and lower court decisions

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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

VII. Massachusetts v. EPA, 200 US 321 (2007)

US Supreme Court Decision - standing

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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 non-statutory 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

VII. Massachusetts v. EPA, 200 US 321 (2007)

US Supreme Court Decision - merits

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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_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf

VIII. EPA Action 2008 –

Immediate responses to Massachusetts v. EPA

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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-carbon-pollution-standard-new-power-plants

VIII. EPA Action 2008 –

Immediate responses to Massachusetts v. EPA

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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

VIII. EPA Action 2008 –

Motor Vehicle Emissions

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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

VIII. EPA Action 2008 –

GHG Limits for Major New Stationary Sources

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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/regulatory-initiatives.html#stationary

VIII. EPA Action 2008 –

GHG Limits for New and Existing EGUs and for Oil Refineries

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―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

IX. Presidential Action 2009 –

Presidential Declaration of Policy

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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

IX. Presidential Action 2009 –

President’s Climate Action Plan, June 2013

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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.

IX. Presidential Action 2009 –

President’s Climate Action Plan, June 2013

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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 rangeland-restoration 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

IX. Presidential Action 2009 –

President’s Climate Action Plan, June 2013

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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

IX. Presidential Action 2009 –

President’s Climate Action Plan, June 2013