Climate policy after Mass v. EPA

The Supreme Court's 5-4 decision in Massachusetts v. EPA (April 2, 2007) does not resolve all the hard questions about US climate policy; it only holds that the state petitioners have standing (potentially important in future cases), and that EPA has the authority to regulate greenhouse gases as "air pollutants" under the Clean Air Act program for motor vehicle emission standards (section 202).  It says nothing about how such regulation should be designed nor how stringent it should be.  But it could set the stage for a shift of regulatory initiative on climate from the states and the Congress to the EPA – - if EPA decides to use its authority creatively.   

With the US out of the Kyoto Protocol, and the current Bush administration opposed to mandatory federal regulation, there have been several bills floated in the Senate, and several initiatives by the states. But so far, despite several bipartisan efforts (notably the McCain-Lieberman bill, and others), none of the Senate bills has attained a majority vote (save the Bingaman-Domenici non-binding resolution in 2005), and no bill has passed the House. Meanwhile, the states have pursued both regulation (e.g. in California and in the group of Northeastern states called RGGI) and litigation (e.g. public nuisance suits against large corporate emitters). But the states' actions may be constrained by several legal obstacles including the political question doctrine, Dormant Commerce Clause, Dormant Treaty Clause, and Interstate Compacts Clause. More important, the limited impact of states' actions on global emissions, and the potential for "leakage" of emissions from regulated to unregulated jurisdictions, mean that the states' actions could be ineffective or even perverse.

After Mass v. EPA, the EPA has the authority to regulate greenhouse gas (GHG) emissions from motor vehicles. (As the majority opinion noted, EPA could still decline to exercise that authority; but it would likely be sued again.) But regulating just the motor vehicle sector would impose high costs for small gains. And vehicles’ CO2 emissions are already partly regulated by federal fuel economy standards. An economy-wide approach to GHGs would yield more environmental effectiveness at lower cost.

Broader authority now looks likely. Another case, Coke Oven Envt'l Task Force v. EPA, had been stayed in the DC Circuit pending the Supreme Court's decision in Mass v. EPA; in the Coke Oven case, the EPA could now be found to have similar authority to regulate GHG emissions from stationary sources such as electric power plants (under Clean Air Act sections 108, 109 and 110). But that part of the Clean Air Act tells EPA to set national ambient air quality standards, which states must then attain through state implementation plans (SIPs). The problem here is that no state could effectively alter its own ambient level of greenhouse gases, because that ambient level depends on the global concentration of such gases, which in turn depends on global emissions and sink removals. So this state-implemented part of the Clean Air Act is a mismatch for a globally mixing air pollutant.

Yet there is a creative way that EPA could bring these programs together into a unified federal program that would overcome the weaknesses of state-level and sector-specific programs. EPA could set a national ambient level, and then find the states' implementation plans to be inadequate (or the states might simply decline to submit their plans). In that situation, the Clean Air Act gives EPA the authority to issue a federal implementation plan (FIP). EPA (ideally in collaboration with other federal agencies such as Energy, Transportation, Interior, and Agriculture) could then use a FIP to institute a national, economy-wide cap-and-trade program that cost-effectively reduces greenhouse gas emissions.

A US approach undertaken in concert with other major emitters not yet constrained by Kyoto - - such as China, India and Brazil - - would be even more cost-effective. If anything is worth doing about climate change, such an international approach using cost-effective market-based incentives is surely the best. So, in collaboration with the State Department, EPA could make the FIP contingent on similar action by other major emitting countries, so that the FIP would actually influence ambient levels of greenhouse gases.

Would EPA take this EPA creative route to adopt a national GHG emissions trading program under its current statutory authority? Should it? Or should it leave it to the Congress to enact a new law for GHGs? EPA has been reluctant to adopt FIPs in the past, fearing the political reaction to federal controls on local air pollution sources. But industry, NGOs and even the states (who fear emissions leakage to other states) might well prefer a uniform federal program to a patchwork of inconsistent state programs, especially for globally mixing pollutants with no local health impacts. And the two houses of Congress may not be able to agree on a single approach before EPA acts (or the Congress may enact a flawed approach). EPA action could thereby deflect more costly and less effective strategies from other quarters. EPA itself has been creative in the past in designing new cap-and-trade programs, such as the original emissions offsets, bubble & netting programs that the Supreme Court essentially approved in Chevron, and the highly successful phasedown of lead in gasoline; and EPA adeptly managed the landmark acid rain trading program in the 1990 Clean Air Act.

Short of a new and improved international treaty, or a well-drafted act of Congress, the new EPA strategy I suggest here could be the best option for sensible climate policy. It would give the Presidency (both now and after 2008) and the federal policy experts, rather than the states or the Congress, the leading role. Through interbranch competition, it would help empower the best ideas in the Congress.  The parochial distortions recently manifested in the European Union’s GHG emissions trading system suggest that careful expert design is superior to local politics as a way to fashion large cap-and-trade programs. Of course, this scenario depends on EPA deciding to exercise its authority, which in turn depends on presidential politics.

For more on my views, see, e.g., Richard B. Stewart & Jonathan B. Wiener, Reconstructing Climate Policy: Beyond Kyoto (AEI Press, 2003); and Jonathan B. Wiener, “Think Globally, Act Globally: The Limits of Local Climate Policies," -- U. Penn. L. Rev. -- (forthcoming).

Comments

[evden eve nakliyat]

very nice informations.thank you very much.and ver nice blog i will come here all the time.thankss...

[MA]

Your suggestion that EPA address the problem of global warming through the establishment of a NAAQS for GHGs, followed by a national FIP, has little merit. Without significant amendment, not only is title I of the CAA ill-suited for the task, but such efforts would take well over a decade.

The first step in the process you suggest would be for EPA to establish GHGs as a criteria pollutant. Under the best of circumstances, that would take one year. (Total: 1 year)

In reviewing and revising the existing NAAQS, EPA has repeatedly argued that it requires at least five years for this task. Assuming that the complex task of assessing the problem of global warming and developing an appropriate standard could be done within the standard time frame, that would require at least five years. (Total: 6 years).

The recent ozone and PM2.5 NAAQS were finalized in 1997. Litigation over the EPA’s actions in issuing the NAAQS took until 2002. One could easily assume that whatever standard EPA established for GHGs, it would be challenged. Let’s be optimistic and assume that the Supreme Court does not take cert. Litigation would then consume perhaps two years. (Total: 8 years).

As part of the NAAQS process, EPA would have to determine how to designate nonattainment areas. Would nonattainment be based on GHG concentrations at ground level? Concentrations 10 miles up? Where would the monitors be placed that are necessary for demonstrating attainment or nonattainment? How to determine the size of the nonattainment area? The whole country? Let’s be incredibly optimistic and assume that those problems are addressed and the entire country is designated nonattainment in one year. (Total: 9 years).

States would then have some period of time to develop SIPs to address the nonattainment problem. Again, let’s be optimistic and assume two years. (Total: 11 years). The federal government then indicates that really, it does not expect States to submit SIPs and is planning to promulgate a FIP. The States go along with the plan, fail to submit SIPs and are immediately subject to automatic sanctions, losing all federal highway funds. Hmmm...wonder how the States might feel about that?

The federal government is now ready to roll out its plan for addressing GHGs through a cap and trade program. It must propose and take comment on its plan and then promulgates a final FIP. (Total: 12 years). Assuming the FIP is not challenged, finally, in 2020, the US government has a FIP in place to address GHGs. And that’s the optimistic scenario.

As this brief summary indicates, there are numerous practical issues associated with using title I of the CAA to address GHGs. I sincerely hope that addressing climate change through a national FIP is not “the best option for sensible climate policy.”

[Joan A. Conway]

Nuclear Power is a hard alternative to obtaining clean air without greenhouse emissions, but France leads the way with about 58 power facilities in the little country, less the size of Texas.

France currently is selling it to London and German and Italy, and building power facilities for North Sea Countries.

Wouldn't it be a lot easier to change our appetite for power than expose ourselves to the dangers of nuclear power facilities?

Many cities use horse-drawn carriages for tourists, and have made way for bike paths, but when a city is as labor intense as Chicago, with many workers within three miles of their offices, this begs for another solution.

Using grease for fast-foods restaurants, like Daryle Hannah's SUV, offers another alternative to consume what we would otherwise discard as a waste product.

Moving our jobs overseas to more tolerant countries is going to be very attractive to employers seeking less legislative control over how they do business, as is already the case with manufacturing processes.

Perhaps there are natural solutions to this bad state of affairs, like we take oatmeal for our high cholestral to absorb it and lower our cholestral.

Maybe there are insects or animals or birds or fish that can absorb the greenhouse gases in our atmosphere for us, as we learn to eliminate our dependency upon its source(s).

Certain fishes have been known to eliminate the algea in our lake waters.

What if big generators of lake water could filter and recycle our air to eliminate the greenhouse pollutents, and damp moist cold, sometimes icy, air was the side affect for doing so?