The environmental blogosphere is already abuzz over the Supreme Court’s grant of certiorari in AEP v. Connecticut. The case is of critical importance in determining whether the courts have a role to play in adjudicating climate change. Few believe that the courts are a good venue for developing climate policy. But for the foreseeable future, the question is whether the traditional common law can fill in for Congress’ failure to take more comprehensive action.
In AEP, Connecticut, along with several other states and public interest organizations, brought a public nuisance action against the five largest U.S. electric utility companies. The plaintiffs sought injunctive relief in the form of emissions limits on the utilities’ facilities. In 2005, the district court held that applying public nuisance law to the problem of climate change presented a nonjusticiable political question, and dismissed the case. In 2009, the Second Circuit reversed, re-opening the courthouse door to climate nuisance cases.
Here's a look at several of the key legal issues presented by the case.
Political Question Doctrine: In this and other climate nuisance cases, the political question doctrine has been the preferred vehicle through which district courts have dismissed the cases. (See also Comer v. Murphy Oil Co. and Kivalina) The Second Circuit rejected this approach. The first key issue under the political question doctrine is whether the matter is textually committed to one of the political branches (the elected branches). On this prong, the Second Circuit stated strongly that: “In this common law nuisance case, ‘[t]he department to whom this issue has been ‘constitutionally committed’ is none other than our own – the Judiciary.”
Full textAs “Cap-and-Trade Is Dead” continues to echo through the empty halls of Congress, California rolled out its proposed greenhouse gas (GHG) cap-and-trade program on Friday. The proposed regulations send a powerful message that, notwithstanding political paralysis at the federal level, the states are proceeding with meaningful climate action.
The proposed cap-and-trade program, to be voted on by the California Air Resources Board (CARB) at its December 2010 meeting, is scheduled to take effect in January 2012. At the outset, it will apply to the state’s large stationary sources, including manufacturing and utilities. Beginning in 2015, the program will also cover fuel distributors, including distributors of transportation fuels and natural gas or propane not covered by the program’s earlier phase.
The cap-and-trade program is just one of many emissions reduction strategies outlined in California’s scoping plan, the planning document that guides the state’s implementation of AB 32, its primary climate law. (Other strategies include vehicle emissions standards, a renewable portfolio standard, building and appliance efficiency standards, an electricity performance standard for utilities, and a host of other measures.) The cap-and-trade program nonetheless has far-reaching significance because it sets an actual cap on 85% of the state’s emissions. Although the state’s many climate strategies are all designed to reduce emissions, their actual results are uncertain, and the cap will help the state meet its specific target.
Full textAfter endless negotiations and draft bills, the Senate has given up on climate legislation that would place any sort of cap on the nation’s emissions, and will likely settle for a few select energy initiatives. Congress’ failure to act is galling. Hand wringing is fully justified. But what now? State and local governments have become accustomed to federal paralysis, and will, I hope, continue to march on notwithstanding the tight lock that certain vested fossil fuel interests and industry have clamped on congressional action. Moreover, EPA’s efforts to regulate greenhouse gases (GHGs) under the Clean Air Act have become all the more critical in the absence of comprehensive federal climate legislation. A key question, however, will be whether state, Clean Air Act, and existing federal energy laws can make up for the absence of more comprehensive federal climate legislation.
In the last several years, over half the states have moved forward with climate action plans that set climate reduction goals and provide a framework for comprehensive statewide emission reduction initiatives. The prospects for full implementation and achievement of state climate goals are, however, uncertain. Only 10 states have established their emissions targets through state legislative action that would give the states the legal authority to implement measures to achieve their goals. Many other states have established climate programs through executive initiatives that might not be fully implementable without additional state legislative action.
While the Senate rejected efforts to cap GHG emissions and establish a cap-and-trade program for utilities, industry, and other sources, state programs continue to evolve. The Regional Greenhouse Gas Initiative (RGGI) a cap-and-trade program for utilities in northeastern and mid-Atlantic states, has been humming along since January 2009. Regulated utilities covered by the program buy carbon allowances at quarterly auctions that have operated smoothly and economically. The states are then using the revenue to invest in energy efficiency and other energy programs, programs that will help reduce emissions and make the emissions caps easier to meet.
Full textIn “Minding the Climate Gap: What’s at Stake if California’s Climate Law Isn’t Done Right and Right Away,” released Wednesday, researchers from several California universities have correlated the relationship between greenhouse gas (GHG) emissions and associated co-pollutants in several California industries. The results demonstrate that California’s climate law, AB 32, enacted in 2006, could help reduce not just carbon dioxide emissions, but a variety of co-pollutants that have contributed to the state’s persistent pollution. At the same time, the study demonstrates that if the state chooses to implement an unfettered GHG trading program, that program could continue or worsen existing racial disparities in pollution. The study proposes several carefully tailored policies that would maximize a cap-and-trade program’s benefits to public health and help narrow current inequities. The proposals, tailored to California’s emerging cap-and-trade program, could provide a model for federal policy.
GHG and co-pollutant emissions are inextricably linked: the combustion that generates GHGs also generates locally harmful co-pollutants. Trades in GHG allowances will, consequently, directly impact associated co-pollutant emissions. For example, if a facility that generates fewer co-pollutants per ton of GHGs in a lightly populated area were to sell allowances to a facility that generates more co-pollutants per ton of GHG emissions in a heavily populated area, then that trade could worsen relative public health impacts. The allowance transaction would lead to continued GHG emissions with more co-pollutants in a more heavily populated area. (See page 1 of the report for a real-world example.)
The study analyzes the California industries with the highest carbon dioxide emissions: petroleum refineries, cement plants, and power plants. It analyzes the populations associated with each industry's emissions and the racial and income demographics of the impacted communities. The researchers devised a “Pollution Disparity Index” that “measures the relative co-pollutant burden on communities of color, as compared with non-Hispanic white communities.” (15)
Full textSenator Murkowski’s proposal to disapprove EPA’s scientifically and legally justified finding that greenhouse gases endanger the public health and welfare would strip the federal government of its primary legal mechanism for addressing catastrophic climate change. If Congress does not think the Clean Air Act (CAA) is the best mechanism for regulating greenhouse gases, it should pass legislation providing a better alternative, not gut the only law that currently applies to still-uncontrolled emissions.
As the Supreme Court found in Massachusetts v. EPA in 2007, greenhouse gases are clearly “air pollutants” as defined by the Clean Air Act. The CAA purposefully crafted a broad definition in order to empower EPA to respond to new threats as they emerge. EPA’s recent endangerment finding was the logical, legally required, and inevitable next step. The science is unassailable: greenhouse gas emissions pose a profound danger to the public health and welfare.
EPA’s endangerment finding was made in response to a petition for automobile emission standards, and the resolution to disapprove EPA’s finding would, technically, apply only in that context. Nonetheless, the writing is on the wall both at EPA and in Congress. EPA’s endangerment finding in the automobile emission context would apply equally to other sections of the Clean Air Act, including provisions that control new sources of pollution. And Sen. Murkowski would presumably move to disapprove any endangerment findings EPA made under these other sections.
Full textThe latest version of the Senate climate bill, released by Senator Boxer on Friday, October 30, retains EPA’s authority to establish meaningful facility regulations under the Clean Air Act (CAA) while freeing EPA of the obligation to implement CAA provisions that are ill-suited to controlling greenhouse gases (GHG). (Section 128(g): Amendments Clarifying Regulation of Greenhouse Gases under Clean Air Act (at page 867). The Friday version of the bill is available by E&E subscription here.) The Senate bill’s continuing preservation of core regulatory authority is superior to the House bill’s sweeping preemption of traditional regulation (see my previous analysis). Ultimately, however, Congress should give EPA regulatory authority in a manner uniquely suited to the character of GHG emissions, rather than continuing to refine existing CAA authority.
The Senate bill limits EPA authority to require pollution controls to large facilities: those that emit more than 25,000 tons per year of carbon-dioxide equivalent. In so doing, EPA will have authority over roughly the same “major” facilities that it has traditionally regulated. The Clean Air Act defines a facility as major, and subject to controls, if it emits 100 or 250 tons per year of a pollutant (depending upon the industry). With that standard, many small facilities would have been drawn into the regulatory net, overwhelming EPA with the duty to develop standards for relatively minor contributors. EPA has attempted to address this risk through administrative action: last month the agency proposed to apply the Clean Air Act only to the large sources covered under the Senate’s recent revision. But that administrative action risked legal challenge since it was inconsistent with the statute’s plain language triggering regulatory requirements at much lower levels. By codifying EPA’s administrative efforts, the agency is on safer ground. Although direct regulation of small sources is worth considering seriously, the Clean Air Act provisions at issue would have provided a poor mechanism for doing so.
Full textThis post is the second in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.
Wednesday was a big day for advocates of traditional regulation. While the Waxman-Markey bill proposed exempting greenhouse gases (GHGs) from key Clean Air Act (CAA) provisions, the Boxer-Kerry bill proposes a greenhouse gas (GHG) cap-and-trade program to complement rather than replace the CAA’s standard authority to establish regulations for stationary sources of air pollutants. Almost simultaneously, EPA proposed a rule that would set the stage for applying CAA standards for new and modified sources on the nation’s biggest GHG emitters.
Most of the Clean Air Act’s existing authority is retained under the Boxer-Kerry bill. That means that EPA can establish standards for all new facilities and for existing facilities that significantly modify their plants. (More specifically, EPA can develop generic “new source performance standards” for new and modified facilities, and can require these facilities to go through a more detailed “new source review” process that generally imposes additional requirements.)
In addition, the Boxer-Kerry bill supplements the Clean Air Act’s regulatory authority over brand new coal-fired power plants by setting future emission reduction requirements for them. Plants that receive permits between 2009 and 2019 must achieve a 50-percent reduction in emissions by 2025 (or sooner if commercial large-scale carbon capture and sequestration is already in use). Plants that receive permits from 2020 on must achieve a 65-percent reduction in emissions. (Section 812(b)) The provisions provide utilities considering future investments in coal with advance notice that emissions from coal-fired plants will be constrained.
The Boxer-Kerry bill preempts only a narrow slice of Clean Air Act authority. It temporarily precludes EPA from establishing regulations that would interfere with uncovered sources’ ability to generate offsets. (Section 811.) The preemption is narrow, since it applies only to entities that are not covered by the cap-and-trade program and the trading program covers a broad range of entities. (See section 700(13), defining “covered entity.”)
Full textThe Second Circuit's ruling Monday in State of Connecticut, et al. v. American Electric Power Company Inc., et al. revived a public nuisance lawsuit against the nation’s five largest electric power companies. The case opens the door to a potential judicial remedy for the alleged harm and increases the pressure on Congress and the Executive Branch to devise a more comprehensive solution to our greenhouse gas problem.
In an ideal world, would we give the task of designing facility-specific climate controls to the courts? Of course not. But we don’t live in an ideal world. Congress is paralyzed and EPA’s authority under the Clean Air Act has not yet been translated into concrete limits on greenhouse gases. The Second Circuit’s decision maintains the courts’ traditional common law powers to adjudicate claims that one party’s actions are harming another. The other two branches of government should take note.
Eight states, the City of New York, and several non-profit land trusts brought the case against five large power companies, companies that generate about a quarter of the U.S. electric power sector’s carbon emissions and about 10 percent of the nation’s total emissions. Pointing to current impacts on water supplies and coastal erosion and a litany of future impacts on the states’ interests, the plaintiffs alleged that the companies’ carbon emissions constitute a “public nuisance” – “an unreasonable interference with a right common to the general public.”
Full textAs fellow environmental law professors David Schoenbrod and Richard Stewart take their advocacy for market mechanisms and skepticism about regulation public, with an op-ed in the Wall Street Journal on Monday, I thought it was time to speak out in favor of a role for regulation. They claim that the climate change bill that passed the House in July, the American Clean Energy and Security Act of 2009 (the Waxman-Markey bill), relies too much on “top-down” regulation and not enough on pure market mechanisms. Regulations, in their view, are bureaucratic, inefficient, and politically motivated to favor key industrial constituencies. Market mechanisms would be more efficient and effective, they say, because once an emissions cap is set, industry and consumers would make their own rational emissions reduction decisions.
Ideological claims that “markets work” and “regulations don’t work” miss the point. Schoenbrod and Stewart identify failed regulations and successful markets. I can identify failed markets and successful regulations. For example, the European Union’s European Trading System, its initial foray into greenhouse gas controls, failed to reduce emissions or generate innovation incentives, while many U.S. regulatory initiatives have successfully reduced traditional pollutant emissions. We can all point to examples of success or failure for a given policy instrument. While markets and regulations have differing intrinsic strengths and weaknesses, the most critical factor is how well or poorly they are designed, not the choice between them. In a fraught regulatory environment presenting plenty of opportunities for either method to fail, Congress should provide the Environmental Protection Agency with the flexibility to adopt regulatory requirements to complement -- or rescue, if necessary -- its predominant market strategy.
Professors Schoenbrod and Stewart rue the instances in which Waxman-Markey calls for regulation. What they do not emphasize is that the bill’s predominant approach for directly addressing emissions sources is cap-and-trade. The bill strips EPA’s authority to impose regulations on most stationary emissions sources by exempting all sources covered by the cap-and-trade program from the Clean Air Act’s regulatory provisions. (EPA can set “new source performance standards” only for the uncapped sources that are too small to be included in the trading program.) While some Clean Air Act provisions are indeed ill-suited for addressing greenhouse gases, Waxman-Markey fails to provide a better-tailored regulatory alternative.
Full textThe Waxman-Markey bill, in its current form, continues the nation’s wise respect for the complementary roles of the federal government and the states. By establishing a national cap and a national trading program, the bill would draw all states into the essential task of reducing greenhouse gas (GHG) emissions. But, like the federal environmental laws before it, the bill simultaneously provides states with the power to achieve more stringent reductions. Although industry may resist the prospect of state control, Congress should maintain the balance between federal and state power the bill has established.
The Clean Air Act, which the bill amends, already allows states to set more stringent regulatory standards for facilities in their states. In a national cap-and-trade program, however, that power could be rendered meaningless due to the interconnections among the states created by a national trading system. For example, if a state were to impose more stringent GHG standards on in-state facilities, the facilities would, as a result, use fewer allowances from the national trading system. But the emissions reduction would be illusory: less heavily regulated facilities in other states would simply buy up the allowances freed up by sources in more-heavily regulated states. Thus, even though the Clean Air Act already includes language that appears to allow states to be more stringent, the dynamics of a trading system would erase that ability.
The Waxman-Markey bill provides a mechanism that allows states to continue to set more stringent goals – in practice, not just in theory. Section 334 of the bill would amend the Clean Air Act’s existing savings clause by giving states the explicit authority to set their own more stringent emissions caps.
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