by Hannah McCrea
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.
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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.
Related Links:
Stopping the Murkowski Amendment
Developing nations continue to lead post-Copenhagen
Polluter lobbyists, Senate staff: A murky relationship
