This essay was originally published at Yale Environment 360.
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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, 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, 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 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. 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.
