Co-written by Doug Kendall, founder and president of the Constitutional Accountability Center.
For good reason, many climate activists view 2009 as a disappointing year, filled with bad news coverage and missed opportunities. The Senate seems a long way from passing a clean energy jobs bill, and the long-anticipated U.N. summit in Copenhagen has come and gone, producing only an unambitious, non-binding agreement among world leaders. Moreover, late last year, the climate movement suffered a blow to its image following the “Climategate” hacking scandal and reports that, for the first time in years, a decreasing number of Americans believe in human-made climate change. As we enter 2010, many climate activists say the situation is bleak.
But looking more closely at what transpired in 2009, and by focusing on actions by the Obama EPA, the states, and the courts, we can see that real progress was in fact made last year. A year ago, Warming Law published a four-part blog series entitled “President Obama’s Roadmap to Cap-and-Trade,” the general thesis of which was that the Obama administration could and should use its authority under the Clean Air Act to introduce greenhouse gas regulations without congressional approval — partly to prod Congress into passing a tailor-made climate bill, but also to serve as a critical regulatory “back-up plan” in the event Congress fails (as it has done so far) to pass legislation. We also argued that action by states could serve a similar dual function of prodding Congress to act and supplying a layer of climate regulation that would limit greenhouse gas emissions until Congress gets its act together.
It is no small feat that many of our recommendations and predictions from the “Roadmap” have been realized: despite other setbacks, the U.S. has now adopted its very first nationwide auto emission standards for greenhouse gases, and is poised to adopt its first set of mandatory, federal power plant regulations specifically targeting greenhouse gases. Ongoing state action has resulted in the country’s first mandatory cap-and-trade scheme for greenhouse gases, and a significant revival in tort-based climate litigation may soon lead to yet another source of protection from (and pressure on) firms that emit greenhouse gases.
These changes are very important. Not only are they successfully increasing pressure on Congress to address climate change legislatively, but they are reducing emissions now and setting the foundation for more comprehensive reductions in the future. Below, we will briefly review the successes of 2009, and explain why together, they indicate we are in a much better place at the start of 2010 than some might think.
Raising auto emissions standards
Almost immediately upon taking office, the Obama team began working feverishly to strengthen the federal response to climate change, making the first and biggest strides in auto emission standards. Last January, President Obama ordered the EPA to reconsider its decision to deny the state of California a long sought waiver allowing it to implement strong auto emission standards for greenhouse gases. The president followed this up in May with an announcement that he had reached a deal with California and floundering automakers, not only to grant California its desired waiver but also to adopt the state’s proposed standards nationwide. This deal will soon result in the country’s first nationwide auto emission standard for CO2, and will bring the minimum fuel efficiency standard to 35.5 mpg by 2016 while producing an estimated 30 percent reduction in greenhouse gas emissions from new vehicles.
As part of its deal with California, the White House also secured the automakers’ pledge to drop numerous legal challenges against states that had adopted California’s standards, which the industry previously argued were “preempted” by federal law. This prompted California Air Resources Board Chairwoman Mary Nichols to state within hours of President Obama’s announcement that California would immediately start developing an even better set of emissions standards to begin phasing in starting in 2016 — once the new round of standards is fully in force. In addition, the day after announcing the deal over auto emissions, President Obama issued an executive order formally reversing his predecessor’s position on preemption, ordering all government agencies to review regulations issued in the previous ten years and “scrub” them of unjustified pro-preemption language. President Obama’s decision to grant California’s waiver, and his further action on preemption more generally was thus a critical shift from the Bush administration’s aggressive stance toward federal “preemption” of state environmental policies, signaling Obama’s clear support for states’ historical role as policy innovators and “laboratories of democracy.” This is a huge victory for progressives.
Complying with Massachusetts v. EPA
The Obama administration has also taken significant steps in the past year to comply with Massachusetts v. EPA, in which the Supreme Court held that CO2 qualifies as an “air pollutant” under the Clean Air Act. The Court’s decision, as we argued in last year’s “Roadmap,” remains among the most important milestones to date in compelling a government response to climate change, as the Court effectively created a mandate for the EPA to investigate the impact of CO2 on human health and welfare, and, if that impact were deemed dangerous, to use its authority under the Clean Air Act to regulate CO2 emissions.
Within weeks of her confirmation, Obama-appointed EPA Administrator Lisa Jackson announced that the agency would begin preparing the “finding of endangerment” required by the Clean Air Act. Last month — coinciding with the Copenhagen summit — Jackson announced that the process had been finalized, clearing the way for the agency to begin regulating CO2 emissions. In addition, in September, the EPA appeared to foreshadow greenhouse gas regulations when it proposed the “tailoring rule,” which stated that with respect to greenhouse gases a source would not qualify as a “major emitter” (and therefore would not be subject to certain regulations) unless it emitted more than 25,000 tons of carbon dioxide, or carbon dioxide-equivalent gas per year. (For most pollutants regulated by the Clean Air Act, a source is considered a “major emitter” if it emits greater than 100, or in some cases 250, tons per year of an air pollutant; thus the tailoring rule allows the agency to promulgate rules for greenhouse gases without affecting the millions of small farms and businesses that emit relatively small amounts of carbon.) With these developments in place, the EPA is now free to regulate nearly 70 percent of the total greenhouse emissions from stationary sources nationwide.
These changes in position by the federal government deserve to be both applauded, and defended, by the environmental community. President Obama has strongly signaled that he will make good on his campaign promise to regulate greenhouse gases using the Clean Air Act if Congress fails to act within 18 months of his coming to office. Indeed, our nation may see its very first set of targeted greenhouse gas regulations for power plants in place by the end of 2010.
There is also no doubt that industry and Congress have been moved by the president’s actions. A shift in industry attitudes was evident last year when several high-profile companies announced their departure from the U.S. Chamber of Commerce due to its unwavering opposition to a climate bill, while a growing list of industry leaders have expressed — at least in name — their support for a bill. And since the announcement of the endangerment finding, Republicans in Congress, led by Senator Lisa Murkowski (R-Alaska) and Representative Joe Barton (R-Texas), have stepped up efforts to remove EPA’s Clean Air Act authority to regulate greenhouse gases, signaling their fear of the EPA’s recent moves to comply with Massachusetts v. EPA. These developments reveal that progress over the past year is having the desired effect of prodding Congress to start addressing global warming, as well as laying the groundwork for a layer of regulation that will have real impacts on emissions.
States & courts
Last year also saw the country’s very first mandatory cap-and-trade scheme take effect: the Regional Greenhouse Gas Initiative, or “RGGI.” (Pronounced “Reggie.”) This program, which covers major power plants in 10 northeastern states, entered its first mandatory compliance stage in January 2009. Though RGGI has a modest goal of achieving a 10 percent reduction in greenhouse gases below 2008 levels by 2018, it will prevent carbon emissions in the Northeast from rising, and its relative stability, low allowance prices, and significant revenue for state governments have made it a model for lawmakers in Washington. RGGI remains an important limit on greenhouse gas emissions in the Northeast, as well as a reminder to industry and national lawmakers that states can and will address greenhouse gas pollution if Congress does not.
Finally, perhaps the most surprising development over the past year — and one that has nothing to do with President Obama’s election — is the revival of tort-based climate litigation. At the start of 2009, most experts predicted that “nuisance” lawsuits — in which victims of global warming sue industries for the “nuisance” of climate change — would go nowhere. At least three federal lawsuits had been filed by states, cities, environmental groups, and even Katrina victims seeking damages from energy and auto companies, and all three had been dismissed. Yet in September, federal Courts of Appeals surprised just about everyone by reversing the dismissal of two key nuisance cases. Though the next steps for the cases remain uncertain, these important decisions have put industry polluters on notice that they may soon have to defend their global warming behavior in a court room, and have given Congress yet another reason to pass a climate bill that would displace expensive tort-based litigation.
Of course, as is illustrated by the “nuisance” cases, progress in climate policy over the coming years will depend in part on the individuals who are nominated and confirmed to sit on the federal courts, where they will have the power to undermine or uphold federal and state action and other efforts to address climate change. Industry has already filed federal lawsuits challenging the EPA’s endangerment finding and the California waiver, lawsuits that should remind both the White House and climate activists that judicial nominations are a key component of a successful strategy to address global warming.
The developments listed above reveal that, despite setbacks, the country is in the best shape climate policy-wise than it has ever been. Climate activists reeling from the apparent failures of 2009 should be rallying behind these victories and encouraging more of them, as they foreshadow even greater action in the coming year — particularly with the potential adoption of EPA regulation of carbon emissions. These victories mean the prospects for eventual, meaningful congressional action will only continue to improve, and that even without such action, real limits on greenhouse gas pollution may soon be in place.
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