Grist in Copenhagen

Will the EPA’s greenhouse-gas decision affect the Copenhagen climate talks?

On Monday, as expected, the U.S. EPA officially declared that greenhouse gases are a threat to public health (the so-called endangerment finding), which means the agency is now “now authorized and obligated to make reasonable efforts” to reduce greenhouse-gas emissions. 

We asked our expert panel what this means as it relates to ongoing international climate negotiations:

Is this going to have any effect on the Copenhagen talks? On the one hand, it enables Obama to show that he’s going to regulate greenhouse gases no matter what Congress does. On the other, a regulatory solution is somewhat more fraught than a legislative solution, and could be reversed by the next president. On the (ahem) third hand, does the international community really understand the in’s and out’s of U.S. governance enough to appreciate what this means?

Here are edited excerpts from their responses:

Neil Tangri

Neil Tangri 
Director of the Waste and Climate Change campaign at the Global Anti-Incinerator Alliance

I don’t think the EPA finding will have much effect simply because it’s not news; everyone has expected this for months. Clearly, the timing is designed to give Obama more leverage in Copenhagen. But in order to get any mileage out of it, Obama will have to show that he is willing to make good on his threat to regulate in lieu of legislation. So far, that piece is still missing.

Jessy Tolkan

Jessy Tolkan
Executive director of the Energy Action Coalition

While exiting the Bella Center in Copenhagen on Monday, I got a call on my cell phone from EPA Administrator Lisa Jackson, informing me of the news on the endangerment finding and thanking me and the youth climate movement for refusing to give up our demands — that this administration strive for more, strive to be better. For the thousands of American youth that gathered at EPA hearings around the country and submitted their testimony, and the nearly 100,000 youth that have been pushing this administration through the “It’s Game Time, Obama” campaign over the past six months, this does mean something, and it means something big. It may have been the result we all saw coming, it may feel too perfectly timed, but I refuse to let this moment pass without capturing the boost of momentum that I think it offers. In my conversation with Jackson, I heard someone who wanted to do far more than just serve this president; I heard someone really looking to change the equation.

Over the past few weeks, I’ve been among the harshest critics of the president and his administration for their unwillingness to go far enough on climate, but I’ve cautioned myself and others of being so set in our belief that we’re on a path to nowhere that we miss the chance to get on a more promising one.

I was happy to assure Jackson that she’d only seen the beginning from us, and we expected this only to be the beginning from the EPA, and more broadly from the United States. I say this changes things, and it’s in our court to make it as big of a game changer as possible.

Joe Mendelson

Joe Mendelson
Director of global warming policy at the National Wildlife Federation

Ten years! Ten years! That is how long it has been since I filed the original legal petition that became the Massachusetts vs. EPA case and the endangerment finding. It seems just like yesterday I was watching Justice Breyer’s spittle land on my notes during oral argument.  This is big for me, so forgive me if I wax nostalgic.

The decision does allow the president to have more credibility heading into the negotiations.  No longer can countries say that the “around 17 percent” reduction from 2005 levels is not firm because Congress still needs to act.  Obama can use the endangerment finding as a clear statement that he will meet a 2020 target regardless of Congress.  He can even trumpet the future opportunities to set CO2 performance standards for stationary sources in the next year with the timeline for implementation being sometime in 2012, right when an international agreement kicks into gear.

Putting forth the endangerment effort is also a step toward locking in U.S. action. It would be extremely hard for the next administration to come in and overturn the finding because it would have to be a wholesale repudiation of the science used to make the decision.  Stolen emails aside, I just don’t see that happening or being upheld by any court in the country. More likely, a hostile administration would take a posture on regulations and standards-setting that would lead to the weakest implementation possible, setting off another great wave of environmental litigation.

A significant effort needs to be made to ensure there is not a false understanding that the U.S. can go either wholly with the Clean Air Act or with comprehensive legislation. There has always been a need for both.  It is doubtful any future administration will be willing to walk down the regulatory path to the extent that we’ll get the level of reductions needed out of regulation. The existing authority can get us part of the way there, but legislation that mandates long-term reductions with mechanisms that pay for that transition domestically and provide consistent (i.e not appropriated) funds for our international financing commitments is still essential.

I find it unlikely that these complexities have penetrated many of the Copenhagen delegates’ thinking.

Kenneth P. Green

Kenneth P. Green
Resident scholar at the American Enterprise Institute

Given the timing, I suspect that the EPA move is more about domestic politics than international politics. Nevertheless, the timing of the EPA decision was hardly a coincidence, and is clearly intended to strengthen the Obama administration’s negotiating position in Copenhagen.

Previously, Obama’s ability to deliver on any target he committed to (such as his target of 17 percent below 2005 levels by 2020) was contingent on Congress enacting climate legislation. That’s still a dicey proposition, given his sinking poll ratings, America’s increasing skepticism about climate science, doubts about cap-and-trade, and a still-dreadful economy that will dog him into the mid-term elections. Now, he can claim that he can deliver on his target simply by ordering the EPA to institute command-and-control regulations that would achieve the same result, whether Congress goes with him or not.

I would have to disagree with this Grist statement: “On the other, a regulatory solution is somewhat more fraught than a legislative solution, and could be reversed by the next president.” I’d say you have that one precisely backward. For anyone to “reverse” the EPA’s endangerment finding, and its intent to regulate greenhouse gases at this point, Congress would have to amend the Clean Air Act. A future president could not “reverse” a previous EPA determination without being sued left, right, and sideways. By contrast, the Clean Air Act has stood up to legal challenges before, and Congress has always shown great reluctance to amend any environmental regulation in a meaningful way.

Rhiya Trivedi

Rhiya Trivedi
Climate activist and first-year student at Middlebury College 

From what I could feel during opening statements in Copenhagen on Monday, promises of future action from the U.S. will simply not be good enough. The Alliance of Small Island States, Small Island Developing States Network, Least Developed Countries, African Group, and G-77/China shared common themes today:

  • the lack of ambition in domestic targets from the developed world
  • the inadequacy of current financing commitments
  • the injustice of developing countries being forced to adopt binding targets
  • the need for adequate and predictable technology transfers unhindered by intellectual property rights

Survival was the other common theme; this is a fight for some parties’ lives, and they will not accept delay on any of these terms.

For the U.S., pulling the EPA out of its back pocket will do little to abate this urgency — the need to get it done here and now in Copenhagen.  The developing world is hungry for immediately scaled-up ambition from the U.S., Canada, and other developed parties.

Gillian CaldwellGillian Caldwell
Campaign director for 1Sky

There is no doubt in my mind that the EPA’s long-awaited endangerment finding is game-changing and critical. It’s the reason that 1Sky has been fighting so hard to preserve the EPA’s authority in the Kerry-Boxer bill and beyond.  And it’s one more example that the Obama administration is approaching the challenge of climate change from many angles — fuel economy standards, the EPA, $87 billion in green recovery investments, and, of course, the somewhat disappointing congressional progress.
At the same time, I am reflecting here in Copenhagen on the ongoing challenge I see many U.S. NGOs facing — on the one hand, how to describe U.S. action and progress so as to increase the likelihood of a fair, ambitious, and binding treaty, and on the other hand, how to continue to be advocates for more rather than to come off sounding like spokespeople and/or apologists for the government and its very weak targets and lack of congressional action coming into these negotiations.  Many if not most U.S. enviro groups have opted to continue advocacy behind closed doors while presenting a more positive perspective publicly. As we head toward the lowest common denominator in the Senate, 1Sky urges stronger and more publicly driven advocacy. 

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