27 Oct 2008: Opinion

The Clean Air Act: Jump-Starting Climate Action

The next U.S. president should not wait for Congress to act on climate-change legislation. Instead, he should make use of the Clean Air Act to begin controlling greenhouse gas emissions and to implement a national cap-and-trade program.

by michael northrop and david sassoon

The urgency of the current situation cannot be overemphasized: The latest scientific research tells us that global warming is accelerating at a rate beyond previous expectations, and that the window for a timely response is closing quickly. Despite some political efforts to muddy the waters, there is scientific agreement that greenhouse gas emissions must now be stabilized within seven years or the world will face unpredictable climate-related catastrophes — far beyond the serious impacts already in evidence globally.

Climate action in the United States — at a federal standstill for the last eight years — is expected to finally move forward with the inauguration of a new president in January. What preparations can be made now to assure action within the first 100 days? Congress is expected to try to move cap-and-trade legislation again while also addressing related issues: energy, transportation, economic policy, and conservation. But the key question remains: Is there a leadership strategy that the next president can initiate to strengthen the likelihood of success, particularly during this time of economic crisis?

The latest science demands a strategy that provides a policy pathway that will begin to reduce emissions immediately, and a political pathway that avoids continued gridlock. Relying on a single piece of legislation runs the risk of failing to meet one or both of these nonnegotiable requirements. It could easily take more than seven years to get a federal carbon-trading mechanism to stabilize emissions. It’s also possible that congressional compromise will water down cap-and-trade emissions targets and, worse, undermine existing state and regional efforts.

There is, however, a promising alternative strategy increasingly under discussion by a growing number of legal authorities, politicians,

Such a move would not require new legislation and would be on sound legal footing, thanks to a 2007 Supreme Court decision.

and policy experts: Activate the Clean Air Act — arguably the most cost-effective environmental law in the U.S. — and use it to control greenhouse gas emissions. Such a move would not require controversial new legislation and would be on solid legal footing, thanks to the U.S. Supreme Court’s landmark 2007 decision, Massachusetts v. Environmental Protection Agency (EPA), which affirmed that carbon dioxide emissions are a pollutant as defined by the Clean Air Act and can therefore be regulated by the EPA.

That ruling is now informing Sen. Barack Obama’s thinking. Jason Grumet, his energy adviser, said this month that if elected president, Sen. Obama would declare CO2 a dangerous pollutant under the Clean Air Act and use the act to limit emissions. Experts do not dispute the executive branch’s authority to do so.

“EPA has the authority to regulate sources of pollution directly and could set emissions standards for new stationary sources of pollution — such as coal-fired power plants, oil refineries, and steel and concrete plants — in relatively short order,” said Lisa Heinzerling, professor of Law at Georgetown University Law Center, who wrote the petitioners’ brief in Massachusetts v. EPA.

She and many other legal experts believe that under the Clean Air Act, the EPA can also administer a national cap-and-trade program by writing federal rules to unify independent regional carbon markets. Already, 23 states and four Canadian provinces are forming such markets, with 10 additional states being brought into the process as observers. Experts believe the EPA can promulgate an additional set of regulations that would control transportation emissions — everything from cars and trucks to boats and airplanes.

“The high court essentially said the United States currently has a law for regulating carbon dioxide emissions, and it’s called the Clean Air Act,” said John Dernbach, a professor at Widener University Law School. Dernbach, who writes extensively on climate change, co-authored a friend-of-the-court brief in the landmark case on behalf of 18 prominent climate scientists.

This means that two branches of government — Congress, which enacted the law, and the Supreme Court, which confirmed its applicability to carbon dioxide — have already set the stage for an executive branch willing to implement the existing law to control greenhouse gas emissions. The next president can step into office and lay out a comprehensive strategy for a national climate plan that uses the Clean Air Act and identifies areas for congressional action. The moment is ripe for such bold executive leadership.

Robert McKinstry, a partner in the environmental group at the law firm of Ballard, Spahr, Andrews & Ingersoll and a co-author of the brief with Dernbach, also believes that the act offers a parallel, lower-cost, and faster avenue for establishing a national carbon market than completely new legislation. He points to existing regional carbon-trading efforts as mechanisms that offer a head start.

Three regional programs are already in development — the Regional Greenhouse Gas Initiative in the Northeast, the Western Climate Initiative, and the Midwest Governors Greenhouse Gas Accord.

The moment is ripe for bold executive leadership.

The first already has held its first carbon credit auctions and will begin regulating power plant emissions in January. Taken together, these initiatives to combat global warming now cover areas that include half the U.S. population, and state governments are already considering how to harmonize regional trading systems with each other, as well as with the European Union’s emissions-trading scheme. In addition, 39 states — and most Canadian provinces and Mexican states — established a climate registry to measure emissions, a cornerstone of an eventual national U.S. market.

This evolving U.S. carbon marketplace can provide the framework around which a national system can grow from the bottom up, McKinstry maintains. Many experts do not believe the EPA can establish a carbon trading mechanism on its own authority. But they agree that states can do so, and that the EPA can play the role of regulator by writing federal trading rules. Why not allow the best-equipped federal agency to oversee and coordinate the ongoing development of regional carbon markets, which are already way ahead of anything likely to emerge anytime soon from new federal legislation?

It is tricky legal terrain and the debate among experts, who are now submitting recommendations to the EPA about how to apply the Clean Air Act to greenhouse gas emissions, will require the skills of a Talmudic scholar to follow. Some experts — including Mary Nichols, chairwoman of the California Air Resources Board — believe that the act could be amended to provide a specific global climate focus, perhaps through a new title, as was done for acid rain in 1990. “There is no reason to abandon a legislative framework that has worked well,” says Nichols.

California has demonstrated to the nation how the law could be put to work to reduce greenhouse gases.

An energy crisis, a climate crisis, and an economic crisis have joined forces in a perfect storm, which now requires a sound and swift response based on new thinking.

The state asked the EPA for a waiver to impose more stringent auto-emissions standards than the current federal ones. Seventeen other states were ready to adopt the California standards, but the Bush EPA has refused. By instructing the EPA to grant this long-delayed waiver, the next president could significantly cut greenhouse gas emissions from the transportation sector with the stroke of a pen. The agency is sitting on eight other petitions that would reduce emissions from other mobile sources, such as trucks, locomotives, boats, and airplanes. This kind of rule-making — not lawmaking — immediately shifts the status quo from argument to action by applying already available regulatory mechanisms.

The Clean Air Act — first passed in 1963, with later amendments — is a mature, flexible, and successful law designed to integrate the work of all economic sectors and all levels of government. By applying the Clean Air Act, the next president can stand on the shoulders of legal and regulatory precedent. He can adopt an executive-branch strategy to complement the next round of legislative efforts. He can lead climate policy development by using existing authority and can ensure that the U.S. has a strong position going into the next round of international climate negotiations. And action in the first 100 days can set the stage for genuine U.S. re-engagement in international climate talks in Copenhagen in 2009.

An energy crisis, a climate crisis, and an economic crisis have joined forces in a perfect storm, which now requires a sound and swift response based on new thinking. Using the Clean Air Act to bring America’s runaway greenhouse gas emissions under control could give the next president the tools he needs to respond to this challenge as well as leverage to use with Congress for broader action. There is no time to waste.

POSTED ON 27 Oct 2008 IN Climate Energy Policy & Politics North America

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COMMENTS

Don't rule out a carbon tax. Same enablement mechanism, but faster to get going and adjust and less-open to political manipulation.

Posted by David Zetland on 27 Oct 2008

Quite fitting that this article is preceded with the word "opinion". That anyone should take any of it to be factual would be utterly ridiculous. So now we are only 7 years from Global Warming D-Day. Meanwhile the 20th century net warming has already been erased, Antarctica has "all-time" record ice and the Smoky Mountains are getting January temps and snow in October. Please tell me more, there's nothing this funny on TV.

Give me more opinions about how we can circumvent the political process by letting judges legislate crackpot edits to existing legislation. Tell me more about the firm scientific consensus of a few hundred IPCC scientists while ignoring that one single petition has 30000+ scientist signatures rejecting GW. Tell me more about how there is no time to waste even when the IPCC and the beloved models predict we will probably see cooling over the next decade. Tell me as many of these tall tales as you can. Because I'll certainly never witness any of these claims in the REAL WORLD.

Instead of "Opinion" maybe it would be better if it said "Fantasy"...

Posted by Derek D on 28 Oct 2008

Derek

The petition with 30,000 signatures you cite is well-known to be a bogus document. The IPCC is the largest and longest scientific collaboration in the history of mankind.

Those are facts.

I'd recommend you talk to your doctor about clinical symptoms of denial, but he's trained as a scientist so you probably won't believe anything he says.

Posted by John Locke on 29 Oct 2008

John Locke,

Solar cycle 24 appears weakest since the last time earth experienced the little ice age, Arctic ice is making a dramatic recovery, Antarctic snow and ice continue to exceed average levels, the past few years have shown a decrease in ocean temperature and levels, ten states have recorded record lows within the past week.

These are fact, so forgive me if I am not impressed by "the largest and longest scientific collaboration in the history of mankind".

Its cold.

Posted by Ray on 29 Oct 2008

Ray
Are you a climate scientist? Or do you just know better because you are you? You are not engaging in science, nor furthering its progress, which relies on peer review, not misinformation.

You may not care about the way in which science is conducted, or the process of peer review -- which by the way has skepticism built into it already.

The IPCC may not "impress" you. But the IPCC was not out to impress anybody, even you being you.

Next, you will take on cardiovascular medical science, and point out how many people with high cholesterol DON'T die from a heart attack, so see! -- you'll say -- there's no danger in high cholesterol! I'm not impressed by the New England Journal of Medicine!

There's no end to the number of things you can set us straight on, because you are you!

Posted by John Locke on 30 Oct 2008

No John I am not a climate scientist but I can read a thermometer.

You?

Posted by Ray Reynolds on 02 Nov 2008

I completely agree with this strategy of using the Clean Air Act as a vehicle to implement new regulations. Business, Industry and State and Local Governments are already plugged into this type of regulatory framework for improving air quality. They get it.

That said, Congress will need to allocate funding for EPA, states to do this new work. And my expert sources, who are air quality regulators, estimate it would take at least two years for most states to implement the changes required to regulate greenhouse gases.

Most global corporations are calling for the federal government to set the emissions cap and create a level playing field soon, to avoid the confusion and cost of multiple approaches in different countries and states.

Posted by Kevin Tuerff on 03 Nov 2008

This last comment is quite revealing of the issue here.

Thermometers provide a measurement of the weather. That's quite different from the study of the climate.

I am not a climate scientist either. I am concerned about how to act upon the knowledge that climate science has provided, and the warning it has issued about global warming. Just because I can read a thermometer, I won't presume to be a climate scientist, or challenge the findings of climate science.

The Oregon petition and some of the commentary here are good examples of the politicization of climate science. Instead of trying to fairly question climate science in peer reviewed settings, as scientists would do, these are political activists working the court of public opinion.

It is well documented that a misinformation campaign has been heavily funded for more than a decade by fossil fuel interests -- so there is a clear motive behind these activities -- and they have attracted fellow travelers of various stripes. The campaign has succeeded in manufacturing a body of false evidence, dressing it up as science -- though it is not -- and broadcasting it through the echo chamber of modern communications. It is poppycock.

Climate science is settled to this point: global warming is being caused by human activity, it is accelerating, and action is urgently needed.

Until and unless that basic consensus is overturned by peer review or revised by the IPCC, let's get on with finding the solutions that will help us use energy more wisely, create a clean energy economy, and make new jobs. These are things valuable in of themselves anyway, climate change notwithstanding.

Posted by David Sassoon on 03 Nov 2008

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ABOUT THE AUTHORS
Michael Northrop is Program Director for Sustainable Development at the Rockefeller Brothers Fund. David Sassoon runs SolveClimate.com, a Web site dedicated to debating and advancing solutions to global warming. Their last story for Yale Environment 360 examined how states are developing sweeping climate and energy policies in the absence of federal action.

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