Developing a Comprehensive Approach to Climate Change Policy in the United States: Integrating Levels of Government and Economic Sectors
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PREPUBLICATION DRAFT To be published in the University of Virginia Environmental Law Review, not for publication elsewhere Developing a Comprehensive Approach to Climate Change Policy in the United States: Integrating Levels of Government and Economic Sectors Thomas D. Peterson,* Robert B. McKinstry, Jr.**, and John C. Dernbach*** Introduction In the past few years the issue of global warming has become a national political priority and will likely remain one of the United States’ and the world’s most pressing and unresolved policy issues for many years. Many factors underlie the call for action. These include: advancement of world science assessments; expansion of public awareness and news coverage; increased severe weather events; noticeable global warming trends; continued recalcitrance toward action by the federal government; international pressure related to treaty obligations; business successes in reducing emissions; businesses demands for a coherent long range national strategy; mounting national energy policy problems, a tidal wave of state and local leadership actions, and court actions. With the Supreme Court’s landmark decision in Massachusetts v. E.P.A.,1 the release of the Fourth Report of the Intergovernmental Panel on Climate Change,2 and several other notable actions in 2007 (including announcement of new state greenhouse gas (GHG) mitigation plans by key governors),3 many believe that a tipping point has been reached, where a mandatory and comprehensive federal response to climate change has become inevitable. The Supreme Court’s decision in Massachusetts v. E.P.A.4 also makes invevitable a national program to address climate change under the Clean Air Act (CAA).5 Reversing the Administration’s denial of a petition to regulate mobile source emissions under * Senior Research Associate at the Penn State Department of Geography and Adjunct Professor at the Dickinson-Penn State Law School. He also serves as Executive Director of the Center for Climate Strategies, a nonprofit center specializing in assistance to state officials in the formulation of state climate change policies and plans. **Maurice K. Goddard Professor of Forestry and Environmental Resources Conservation, The Pennsylvania State University, University Park, Pennsylvania. He is also Of Counsel to the law firm, Ballard Spahr Andrews & Ingersoll, LLP, where he was formerly the Co-Partner in Charge of its Environmental Law Practice Group. *** Professor of Law, Widener University. He is also former policy director of the Pennsylvania Department of Environmental Protection. Robert Altenburg, Widener University Law School Class of 2008, provided help with footnotes. 1 549 U.S.____, 127 S.Ct. 1438., 2007 WL 957332, (2007). 2 Richard Alley, Terje Berntsen, Nathaniel L. Bindoff, Zhenlin Chen, Amnat Chidthaisong, Pierre Friedlingstein, Jonathan Gregory, Gabriele Heger, Martin Heimann, Bruce Hewitson, Brian Hoskins, Fortunat Joos, Jean Jouzel, Vladimir Kattsov, Ulrike Lohmann, Martin Manning, Taroh Matsuno, Mario Molina, Neville Nicholls, Jonathan Overpeck, Dahe Qin, Graciela Raga, Venkatachalam Ramaswamy, Jiawen Ren, Matilde Rusticucci, Susan Solomon, Richard Somerville, Thomas F. Stocker, Peter Stott, Ronald J. Stouffer, Penny Whetton, Richard A. Wood, David Wratt, Climate Change 2007: The Physical Science Basis, Summary for Policymakers, Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (“Fourth IPPC Report, WGI”) (February 2007). 3 For example, the release of former Vice President’s Gore’s Oscar winning film, An Inconvenient Truth (2006), has done much to raise public awareness. 4 Supra, n. 1. 5 42 U.S.C. §§ 7401 et seq. Developing Comprehensive National Climate Policy TDP, RBM, JCD, June 5, 2007 section 202 of the CAA,6 the Court held that (1) the Act provides the United States Environmental Protection Agency (“EPA”) with authority to regulate emissions of carbon dioxide and other GHGs as “pollutants”, and (2) in refusing to regulate greenhouse gas emissions EPA improperly failed to articulate reasons consistent with the statutory standard that the EPA Administrator regulate emissions that “in his judgment. cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” The Court remanded the matter to EPA to make a finding consistent with the statutory standard. , viz. whether, “in his judgment,” emissions of GHGs from mobile sources “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Given the state of the science, EPA could not reasonably refuse to regulate mobile source emissions of GHGs under that statutory standard. Because identical language to that in section 202(a)(1) construed by the Court is found in sections 108 and 111 of the CAA,7 the establishment of a National Ambient Air Quality Standard (“NAAQS”), state implementation plans (SIPs) to maintain the NAAQS, new source performance standards, and the whole panoply of regulatory mechanisms required under the CAA will be applied to GHGs.8 Even before the Supreme Court had spoken, the recent Congressional shift in power had produced a flurry of bills coalescing around the need for strong national goals and mandatory emissions reductions. While at least some of the new bills before Congress have moved toward stronger emissions reduction goals9 and potentially broader and more inclusive policy approaches, they continue to be silent on the specific pathways necessary for full attainment of climate stabilization goals. For instance, the bills do not describe how to: 1. Vertically integrate10 rapidly expanding state and local climate change programs, or international programs, into a new comprehensive national program; 6 42 U.S.C. 7521(a)(1). 7 Id. §§ 7408, 7411. 8 This occurred in the case of lead after EPA established a mobile source emissions standard for lead. See, Natural Resources Defense Council, Inc. v. Train, 545 F.2d 320 (2d Cir. 1976) (requiring EPA to list lead under section 108 of the CAA, 42 U.S.C. § 7408 and to establish an NAAQS). 9 Not all of the bills include meaningful goals. For example, a bill introduced by Senator Bingaman utilizes the concept of carbon intensity, which seeks to reduce the emissions per unit of gross domestic product. This concept bears no relationship to the emissions reductions necessary to stabilize atmospheric carbon levels. Equally importantly, it gives no reliable guidelines to industry or other planners of a guideline for planning targets and, although intended to mitigate impacts on economic growth, is likely to be a two edged sword that may impede efforts to stimulate growth during times of recession or stagnation. Most growth has resulted in reduced carbon intensity and it is much easier to incorporate measures to achieve both relative (intensity) and absolute carbon dioxide emissions reductions in a growing economy where capital goods are turning over. The carbon intensity measure would require greater absolute emissions reductions when the economy is stagnant or shrinking than when it is growing—precisely at the time these reductions will be most difficult to achieve. 10 Vertical integration refers to the integration of all levels of government or governance—local, state, national, and international—so that they work together effectively for the same goal. John C. Dernbach, Achieving Sustainable Development: The Centrality and Multiple Facets of Integrated Decisionmaking, 10 IND. J. GLOBAL LEG. STUD. 247, 279–80 (2003). 2 Developing Comprehensive National Climate Policy TDP, RBM, JCD, June 5, 2007 2. Horizontally integrate11 a full range of effective based measures and programs across all economic sectors; 3. Deal with the question of how to address recalcitrance toward action by the administration; and 4. Implement a full range of near term actions without undue delay. As a result, Congressional legislation and federal rulemaking will need to significantly clarify and expand the approach to governance issues if the nation is to make a clear and effective commitment to the attainment of climate stabilization pathways. If, instead, the nation adopts partial or delayed approaches without resolution of governance issues, many low cost opportunities for action will evaporate, environmental risks will grow, even more action by the United States will be needed later, and international pressure will intensify and spillover into other arenas. 12 Growth and Stabilization of United States GHG Emissions 8,000 7,000 2000 level 6,000 1990 level 5,000 4,000 Energy Efficiency and Conservation Clean and Renewable Energy 3,000 Transportation and Land Use Efficiency MMtCO2e (Net) Agriculture and Forestry Conservation 2,000 Waste Management, Industrial Processes, and Other Sources Additional Federal Actions (Aviation, ODS Substitutes, etc.) 1,000 Emissions after actions 0 2006 2008 2010 2012 2014 2016 2018 2020 The urgent need for comprehensive action, opportunities presented by state actions, the wide array of public and private reduction programs needed, and the complexity of governance across all levels of governance suggest that the conventional model of developing federal legislation “inside the beltway” is unlikely to address the climate issue adequately without substantial augmentation by state learning and example. Other difficult national and international policy problems in the United States have been 11 Horizontal integration occurs when multiple decision makers on the same or