EPA Endangerment Finding: Certainty from the United States
So much remains to be resolved as the McKenna Long & Aldridge team heads to Copenhagen this week. There is much speculation regarding what Congress will do to move forward on climate change. Bottom-line positions from the Obama Administration at the Copenhagen negotiations remain to be seen. But one thing is certain: the Environmental Protection Agency (EPA) is moving forward to regulate greenhouse gas emissions (GHG).
Today, EPA Administrator Lisa Jackson announced a finalized endangerment finding on GHG emissions pursuant to Section 202(a) of the Clean Air Act (CAA). This endangerment finding includes two parts. First, EPA found that elevated concentrations of carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hyrdofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulfur hexafluoride (SF6) endanger both public health and the public welfare. Additionally, EPA found that combined emissions of GHGs from new motor vehicle and new motor vehicle engines contribute to GHG air pollution, which endangers both public health and welfare.
These findings do not themselves impose any requirements on industry or other entities. However, this action is a prerequisite to finalizing the EPA’s proposed GHG emissions standards for light-duty vehicles, jointly proposed by EPA and the Department of Transportation’s National Highway Safety Administration on September 15, 2009. This endangerment finding also serves as a prerequisite for a proposed EPA rule to regulate stationary sources that emit 25,000 tons per year or more of CO2 or CO2 equivalent under the Prevention of Significant Deterioration (PSD) program of the CAA. EPA is expected to finalize both the tailpipe emission standards for light-duty trucks and the PSD regulations by March 2010.
The timing is not coincidence, but rather part of a well-coordinated strategy to send international signals of US resolve. The Obama Administration hopes that this finding will buoy efforts to reach a political agreement at U.N. negotiations irrespective of Senate inaction on reducing emissions.
A Moving Climate Storm on the Gulf Coast. Plaintiffs Move Forward, While Senate Deliberates
When the fury of Hurricane Katrina ravaged the Gulf Coast, many saw this as a tipping point in US public perception towards the reality of climate change. Levees broke, people died, clean water was not available, valuable property flooded, buildings were left hazardous and roads were destroyed. As Chairman Edward Markey (D-MA), Select Committee on Energy Independence and Global Warming has stated, “Perhaps no weather disaster highlights our weakness to climate challenges than our inadequate response to Katrina, which still haunts us several years later.” Not coincidentally, President Obama took the opportunity in his recent trip to New Orleans to plead for bipartisan approaches to passing comprehensive energy and climate change legislation.
While the Senate continues to deliberate and debate, a growing class of people claiming harm from the impacts of climate change continue to take more decisive action. Last week the 5th Circuit of the US Court of Appeals ruled that residents of the Mississippi Gulf Coast, including property and land owners, have standing to pursue their complaint against US energy and chemical companies including Peabody Coal and Massey Energy for their contribution to greenhouse gas emissions and climate change which in turn contributed to the catastrophic wreck left in the wake of Hurricane Katrina. Comer v. Murphy Oil USA, et. al. The plaintiffs seek compensatory and punitive damages under Mississippi common law and constitutional provisions.
Importantly, the 5th Circuit overruled lower district court determinations that the plaintiffs’ claim was “non-justiciable” due to the defendants failure to demonstrate “any exclusive commitment of the issues in this case to a particular federal branch. Nor have they shown the absence of judicially discoverable or manageable standards with which to decide the case.” The 5th Circuit went further stating that,"(e)ven if Congress does eventually enact a federal comprehensive law concerning greenhouse gas emissions, it might very well preserve state common law remedies, as the Clean Water Act did."
The 5th Circuit decision, coupled with ongoing efforts by the EPA to regulate greenhouse gas emissions as pollutants under existing Clean Air Act authority, contributes to increased pressure for Senate action to provide a clear and certain roadmap for managing climate risks. Federal intent on the appropriateness of common law actions related to climate change will be closely monitored as rulemaking and legislative streams of work continue to develop.
Meanwhile back in Congress, Senators Landrieu (D-LA), Vitter (R-LA) Cochran (R-MS), and Vickers (R-MS) represent the residents of Mississippi and Louisiana harmed by Hurricane Katrina. They also represent many of the interests that are defendants in this case or other climate based lawsuits emerging. To date, all four Senators are firmly in the “no” camp when it comes to renewable energy portfolio standards and cap-and-trade legislation. Senator Cochran did support a 2007 sense of the Senate resolution for an international climate agreement. The same week the 5th Circuit decision came down, Senator Landrieu expressed guarded optimism for the new Graham-Kerry bipartisan partnership that seeks a climate package, and the Senator subsequently convened a natural gas caucus with a view to feeding policies into that effort.
A balanced, bipartisan approach from these four Senators would serve their constituencies and the lessons of Hurricane Katrina well.
Getting Our Fill of Ethanol
The support appears to be growing since the request was made to the EPA to grant a Clean Air Act waiver on Friday. Agriculture secretary Tom Vilsack expressed his support for the move today.
Critics say the government should study the impact of burning more ethanol on the environment before granting a waiver. But there’s plenty of hard data to examine.
The Brazilians have been driving on rich ethanol blends for years. The country raised its mandatory blend from 22 percent to 25 percent in 2007.
Science and engineering aren’t holding us back, it’s politics. For example, oil producers have recently expressed their opposition to the change.
I’m no big fan of corn ethanol but I appreciate it as a bridge to lower-emissions, high-energy cellulosic ethanol, and other biofuel formations. By expanding demand for ethanol generally, we can create market opportunities for the more promising fuels to come.
How the EPA Forced Congress' Hand
Last week, word surfaced that the EPA would act to regulate greenhouse gas emissions. At first glance, this news might seem like evidence that the Obama Administration would prefer to rely on the Clean Air Act (CAA) to fight climate change as opposed to getting new legislation through Congress. In fact, the news likely means the opposite. Here's why.
The first step toward regulation of carbon dioxide under the CAA is for EPA to declare that these emissions pose a danger to public health and welfare. That’s called an endangerment finding. The agency could have made this finding-- should have done it--long ago. Now, it’s likely to happen on April 2, 2009, the second anniversary of the Supreme Court ruling that explicitly gave EPA the power to regulate CO2 as a CAA pollutant.
EPA Administrator Lisa Jackson told The New York Times that she doesn’t want to spin “a doomsday scenario," but here’s the problem. It’s easy for the EPA to issue an endangerment finding, but what happens next is tricky.
The Clean Air Act was constructed to control emissions, not fossil fuel sources, so the EPA will have a hard time tackling the root of the GHG problems. There’s no real way to go upstream. Also CAA was drafted to address localized pollution and it isn’t well suited to control a global pollutant.
So the agency faces a tough choice: either squeeze carbon dioxide into ill-fitting CAA regulatory programs or face a raft of legal challenges by environmental organizations for not doing it.
Neither option will sit well with Congress, which is under increasing pressure to fight climate change. The evidence of global warming’s seriousness continues to pile up as does the need for the United States to show leadership to credibly prod China and India to action. So when the EPA makes the endangerment finding, Congress will need to take charge. And the Obama Administration knows it.
Praise for a Climate Policy in Regression?
The praise keeps pouring in for the Administration’s recent first steps toward withdrawing EPA’s objections to California's effort to implement tough emission standards for automobiles. I wrote about this earlier, pointing out that Congress needs to act quickly or get left behind.
Today’s editorial page of the Washington Post suggests that the most effective action might not be regulation at all, or at least not regulation alone -- state or federal. The editorial writers at the Post say the best way to proceed would be to “change the incentives so that people want to buy fuel-efficient vehicles; then companies will make such cars, even without commands from Washington.”
The Post is right, and here’s why: we can impose emissions restrictions on the cars Detroit produces or we can shape the demand for Detroit’s products. Emission regulations like the ones California will pursue will do the former, but a consistent and high gasoline price signal will do the latter. If it were adopted, it would likely produce real emissions reductions more quickly and efficiently. There are many ways to do this, and Congress knows all of them. But the important thing is to support gas prices at consistent and high enough levels to allow market incentives to go to work. Cap-and-trade? Perhaps. Or a gas tax? Perhaps. And rebates to the public, as the Post says, are entirely consistent with this strategy.
It’s only been six months since John McCain and Hillary Clinton called for gas tax holidays during the Presidential race. President Obama wisely refused to support those efforts. Is he willing to go even further and work for a “a gradual rise in fuel prices that would not shock the system,” as the Post put it? Is Congress willing to do the same? That would be leadership.
It would also be leadership if the auto manufacturers took the initiative, as I suggested yesterday, and softened the path for the Administration and Congress by convening key interest groups and agencies to join with them in fashioning a single omnibus vehicle performance standard. Who knows? Out of such a group might come consensus on a gradual rise to a sustained gas price level that would incentivize people to buy fuel-efficient low-GHG emissions cars.
California 1, US 0
The Obama Administration has taken the first steps toward withdrawing EPA’s objections to a California's effort to implement tough emission standards for automobiles. Could that be bad news for those hungry for federal action on transportation emissions?
At first glance, the news seems to be a win for federal leadership, since the lifting of the roadblock in Washington makes California's efforts possible. But the roadblock's removal could soon be seen as a victory for the states. And that could end up leaving Washington's aspirations to lead the regulation of emissions from cars in the dust.
For years, the Bush administration rebuffed California's effort to regulate carbon emissions from cars, officially a waiver of a Clean Air Act allowing the state to regulate greenhouse gases (GHGs) in automobiles. The automobile industry has objected strongly to state-based regulation efforts, stating that different standards in different states are confusing and expensive. In practice, state standard-making forces the industry to design cars to meet all standards, which means the decision is up to the strictest state with a market that the autos can't ignore. Enter the California Air Resources Board.
If Congressional action doesn't follow an Obama decision in due course, we'll all be looking to the states led by bellwether California for emission standards for the auto industry. And how might the auto manufacturers best proceed to get the best deal from Congress in the Obama era? Consensus solutions and public-private collaboration to break policy deadlock are the new watchwords. The auto manufacturers might take a page from the many highly diverse multi-stakeholder groups that have sprung up recently to address everything from climate legislation to chemical testing and production.
The manufacturers might be well advised at this point to ask key state and federal agencies, labor unions, fleet purchasers, non-governmental environmental and consumer organizations, and other potential legislative “deal-breakers” to join with them in fashioning a single omnibus vehicle performance standard for mileage, emissions, air-conditioning refrigerant, electrification, and other green elements. This might be the best path to a uniform federal approach to autos in climate legislation.
Black Carbon Steps from the Shadows as a Major Climate Culprit Worldwide
You may have recently heard about “black carbon” and wondered if it was a climate epithet, a word reversal in a familiar product (carbon black), or simply redundant (carbon is black). But in fact “black” or elemental carbon is emerging as a particularly potent greenhouse agent that needs to be reckoned with on its own terms with special measures to prevent releases to the atmosphere. Recent studies suggest that black carbon emissions, which are not yet controlled by the Kyoto or Montreal Protocols, are the second largest contributor to global warming (after carbon dioxide) and that reducing them may be the fastest strategy for slowing climate change. Black carbon emissions are greatest from developing countries, a trend which is expected to increase, but the US and other developed nations can also do much more to address the problem. Reducing black carbon emissions offers a nearly instant return in lowering the greenhouse effect, because black carbon particles remain airborne for weeks while carbon dioxide remains in the atmosphere for more than a century (see footnote 24 of IGSD October 2008 Climate Briefing).
Recent studies and public testimony by scientists cited in the Intergovernmental Panel on Climate Change’s (IPCC) 2007 report suggest that emissions from black carbon are the second largest contributor to global warming after carbon dioxide emissions and that reducing these emissions may be the fastest strategy for slowing climate change. Soot and other forms of black carbon could have as much as 60 percent of the current global warming effect of carbon dioxide. Also recent studies suggest that black carbon plays a large role in the retreat of arctic sea ice and Himalayan glaciers. Black carbon warms the planet by absorbing heat in the atmosphere and by reducing albedo, a measure of the earth’s ability to reflect sunlight, when deposited on snow and ice. The effect is worse than imagined only months ago. Further, mitigation would have immediate health benefits in addition to the long term effect of reducing greenhouse gas emissions.
The largest sources of black carbon are Asia, Latin America, and Africa. Between 25 and 35 percent of black carbon in the global atmosphere comes from China and India when it is emitted from the burning of wood and cow dung in household cooking and through the use of coal to heat homes. Emissions from China doubled between 2000 and 2006. The problem is not just a question of climate forcing. The inhalation of smoke during indoor cooking has been linked to the deaths of an estimated 400,000 women and children in south and east Asia. Advocates for black carbon controls have pointed out that well-tested existing technologies used by developed countries, such as clean diesel and clean coal, could be transferred to developing countries to help reduce their black carbon emissions. A later blog will address an ancient but promising technology that offers promise worldwide for controlling black carbon releases -- bio-char.
But developing nations are not the only significant sources. Countries in Europe and elsewhere that rely heavily on diesel fuel for transportation also contribute large amounts. Advocates for stronger soot controls in developed nations say that per capita emissions of black carbon from the United States and some European countries are still comparable to those from south Asia and east Asia.
The US emits about 21 percent of the world’s CO2, and only 6.1 percent of the world’s soot, but the US and the European Union could further reduce their black carbon emissions by accelerating implementation and sharpening the focus of existing air quality laws and regulations and by supporting the adoption of pending International Maritime Organization (IMO) regulations. Existing regulations also could be expanded to increase the use of clean diesel and clean coal technologies and to develop second-generation technologies. Senator Hilary Clinton of New York, together with Senators Carper and Kerry, has introduced a bill that would require the US Environmental Protection Agency to study black carbon emissions toward identifying US and global black carbon emissions inventories and levels, the science and extent of black carbon climate impacts including appropriate metrics, and best technology to control emissions. The House had already hosted a hearing a year ago on the issue.
In the US, black carbon is indirectly regulated as a component of fine particulate matter (PM 2.5) under the Clean Air Act. Black carbon constitutes 5-10 percent of PM 2.5 on an annual average basis, but can be much higher on particular days. For example, days affected by fire events show higher levels of black carbon than the annual average. Gasoline combustion, diesels, and fire are the major US sources. (Click here for more info on the composition of PM 2.5). Fine particulate matter affects millions of people who live in vehicle-rich cities and suburbs or near industrial smokestacks. Prolonged exposure to tiny particles up 1/30th the size of a human hair can cause serious respiratory problems such as asthma, cardiovascular disease, and heart attacks.
Black carbon may be indirectly reduced soon in the US because EPA has put more than 215 counties on notice -- including much of the Eastern Seaboard from New York to Washington, as well as Chicago, Los Angeles and San Francisco -- that they are unlikely to meet the national standard for fine particulates. The proposed designations cover metro areas in 25 states and could have major implications for economic growth and transportation planning across the country. Steps to control PM 2.5 include tightening pollution controls for cars, trucks, and non-road engines used for construction. Such programs can be expensive to design and implement, and some critics have argued that meeting such standards comes at the expense of economic growth. But now controlling black carbon in PM 2.5 adds a climate benefit to what otherwise has been viewed as primarily a cardiovascular and pulmonary health issue.
The debate over use of the Clean Air Act for climate management purposes now includes whether black carbon is a pollutant subject to direct CAA regulation. If CO2 is a CAA pollutant, why would black carbon be treated any differently? Senator Obama has said that he would urge use of the CAA tools if Congress does not promptly enact climate legislation. Senator McCain's representatives have said that the Senator would be “reluctant” to use them, while “Sen. Obama would not hesitate to use them as necessary to achieve climate goals,” according to his energy spokesman Elgie Holstein.
Click here for the IGSD’s August 2008 Climate Briefing.
Click here for additional information on inventories of US black carbon.
Click here for more information on black carbon and vehicles in the US.
Click here for basic background information on black carbon.
Click here for an August 2008 report from the Proceedings of the National Academy of Sciences elevating the issue of black carbon.
The Montreal Protocol Out-Kyotos Kyoto
The Montreal Protocol Parties agreed in September of 2007 to speed the phase-out of hydroclorofluorocarbons (HCFCs), the gases which are used in a variety of equipment and fire fighting foams, by providing up to 16 billion tons or more of CO2-equivalent (CO2e) in climate mitigation by the year 2040. What is so striking about this agreement is that it will achieve significantly more than the Kyoto Protocol sought to achieve during its entire first commitment period. Moreover, in July of this year, less than a year later, the leaders of the world’s 17 major economies pledged to continue these Montreal Protocol-based efforts, recognizing the need for urgent action and committing to act without delay to strengthen the Montreal Protocol for climate benefits. At about the same time, the Montreal Protocol parties met in Bangkok to follow on the major economies' endorsement of Montreal as, in effect, a “climate treaty” while still furthering the ozone layer protection goals of the original Montreal agreement. At the July meeting, Argentina, Micronesia, and Mauritius proposed strengthening the Protocol to reduce the 7.4 billion tons of CO2e that will be emitted by 2015 from discarded products and equipment if not properly recovered and destroyed.
Just two months from now, in November, critical negotiations on Montreal Protocol climate actions will take place in Doha, Qatar (November 16-20). In connection with these upcoming negotiations, Durwood Zaelke, the President of the Institute for Governance and Sustainable Development, whose board I chair, stated that “the world’s leaders ... understand that the Montreal Protocol can deliver immediate climate benefits as it has been doing for the past 20 years.” For once we would do well to follow our leaders. The chief Montreal negotiator for Mauritius went further. Sateeaved Seebaluck said that the Montreal Protocol has been “the world’s life-preserver,” keeping us from passing tipping points for abrupt and irreversible climate change.
The Montreal Protocol story is instructive for other climate initiatives. For example, it sheds a different light on the much-maligned idea of using the Clean Air Act for climate protection purposes. Implementation of the stratospheric ozone protection provisions of the CAA pursuant to the Montreal Protocol contributed to the global Montreal climate agreement in 2007. Global emissions of fine particulate black carbon or elemental carbon, which scientists are now saying is second only to CO2 as a global warming source, dramatically alters the reflectivity (albedo) of the earth, particularly its ice and snowfields. Black carbon is not covered by either the Kyoto or the Montreal Protocol. But according to EPA and the Office of Management and Budget, fine particulates, PM 2.5, are the Clean Air Act's most damaging criteria pollutant, and EPA estimates that over 5 percent of US fine particulate emissions are black carbon. (Black carbon will be the subject of a future blog). The CAA may be an appropriate vehicle for controlling black carbon emissions, with Montreal-like payoffs for greenhouse effect reduction.
How to add hydrofluorocarbons (HFCs) and perfluorocarbons (PFCs), both potent non-ODS families of Kyoto gases, to the Montreal regime is a topic for another day.
For more information see:
19th MOP HCFC Adjustments to Enter into Force May 2008
UNEP DTIE OzonAction Branch HCFCsNews
EPA Honors Montreal Protocol Champions for Protection of Climate
Climate Change and Aviation Fuel: A Tough Problem to Solve
Large aircraft require high energy fuel, and lots of it. But jet fuel is very difficult to clean up to satisfy climate protection imperatives, which has led to a major dispute in the US over the role coal-to-liquids and other alternative aviation fuels may play. Congress, the US Air Force, the major airlines, the US Environmental Protection Agency, its Federal Aviation Administration, a special Defense Department task force, coal-state senators, and many, many others are getting into the dogfight, which may go on for a long time.
With all the publicity aircraft greenhouse emissions are receiving, one might conclude that they rank right up there with electrical utilities, vehicle emissions, and other prominent categories in terms of greenhouse threats. In fact, US aircraft operations account for 10 - 12 percent of greenhouse emissions from the transportation sector and for only about three percent of total US greenhouse emissions, which is also about the total percentage contribution to greenhouse gases from aviation worldwide. The difficulty is, controlling aircraft carbon emissions is a particularly intractable problem, and the problem is going to become much worse over the next few years as demand for air travel and transport doubles or even triples by 2025. The issue is exacerbated by scientific uncertainty about just how much more potent at high altitudes aircraft emissions are in causing the greenhouse effect as compared to emissions on the Earth’s surface.
The airline industry has done a great deal already, however, to increase its efficiency and lower the rate of increase in greenhouse emissions per air mile traveled. The industry claims that improvements in operational efficiency over the past 30 years have reduced carbon dioxide emissions 70 percent in the course of improving fuel efficiency 110 percent. The most promising pathways at present to further reduce the carbon footprint of aviation involve improved air traffic control systems, on-ground aircraft operations management, lighter engines and more aerodynamically designed aircraft, and flight altitude and speed adjustments. Still, attempts to improve jet fuel composition and performance have received the lion’s share of attention in recent months.
Finding less climate-challenging fuels for today’s jet fleet is proving to be a particularly challenging and controversial topic. Some promising experiments in fueling aircraft reminds one of a trip to a botanical garden, to a marsh, or to the supermarket, or of the early days of flight at Kitty Hawk. Recent forays include biofuels derived from babassu nuts, coconut oil, algae, or the central American plant, jatropha (a relation of castor oil). A very light, albatross-like solar-powered aircraft is under development in Germany, while Boeing has actually flown – for twenty minutes at 60 miles an hour – a manned aircraft powered by hydrogen fuel cells and lithium battery-stored electricity. But the major battle over alternative aircraft fuel is taking place over fuel liquids derived from coal or oil (tar) sands.
Coal-to-liquids (CTL), whether for aircraft or for other consumption as a fuel, is hardly new. Germany pioneered the process in the Second World War, and for the past nine years South African Airways has flown its jets on a 50-50 mixture of CTL synthetic and ordinary commercial fuel. The US Air Force has completed a test program very much like the South African fuel mix, using 50 percent Fischer-Tropsch synthetic fuel and 50 percent commercial fuel. Even B-52s can safely burn the fuel.
The Air Force and members of the Senate and House from coal-producing states, not to mention proponents of tapping the vast reserves of oil sands in Canada, are pushing strongly for development and use of CTL aviation fuels. The difficulty is, among other things, that a lifecycle analysis conducted by the US EPA found that CTL fuel releases 118.5 percent more greenhouse gases than conventional fuel (EPA, 2007). Perhaps carbon capture and sequestration technology, were it to be developed, could be used to overcome this large carbon deficit? No, said EPA, even after going to the difficult and expensive effort of capturing and sequestering CTL carbon compounds, emissions would still be 3.7 percent greater than for conventional petroleum. The Defense Department has already asked MIT to study the lifecycle carbon profile of CTL production and use, and Senator Lautenberg intends to re-insert in the Federal Aviation Administration funding re-authorization bill making its way through Congress a provision requiring the National Academy of Sciences to organize a study committee to address the question. While these studies are pending it may be correct to say that the jury is still out on the climate implications of CTL and other alternative aviation fuels, but it is clear that widespread adoption of CTL and oil sands to liquids fuels would be accompanied by major environmental challenges.
The Air Force is particularly partial to CTL as a source of aviation fuel and is aggressively pursuing its development. However, a major study done by the Defense Science Board Task Force on DoD Energy Strategy at the request of the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics, titled “More Fight – Less Fuel,” has concluded that domestically produced synthetic fuel will not contribute to the DoD’s most critical fuel problem – delivering fuel to deployed forces. The Task Force, co-chaired by James Schlesinger and retired General Michael Cairns, wrote that full carbon life-cycle analysis should be performed and that synthetic fuels should have a carbon footprint less than conventional petroleum fuels before they are adopted.
This last remark may be directed at a DoD-commissioned legal analysis attempting to show that in the Energy Policy Act of 2005, Congress did not intend for the military services to be considered as “federal agencies.” Why? Because section 526 of the 2005 law bans federal agencies from purchasing any fuels that produce higher levels of greenhouse gases than conventional jet fuels. (This provision is kicking up sand in many quarters and may not survive the political pressure that is being brought to bear.)
The EPA plans to join with the FAA in considering regulation of aviation greenhouse emissions in the course of the climate “town hall” comment period that EPA has called for to gather thoughts about using the Clean Air Act to broadly regulate greenhouse gas emissions, a topic we have covered in an earlier blog. The European Union first tried to ignore aircraft greenhouse emissions in its first round of actions under its climate authority (the issue, is, as we said above, a very difficult one), but it is now considering requiring airlines to participate in the emissions trading system.
The debate over how the US will attempt to come to grips with the difficult issue of direct aircraft engine emissions of greenhouse gases is just getting started.
Who's in the Driver's Seat? Washington vs the States, Agency vs Agency
The National Highway Traffic Safety Administration (NHTSA) recently dealt a blow to both EPA and the states by proposing preemptive federal fuel economy standards (corporate average fuel economy or CAFE standards) that not only negate the states’ efforts to regulate fuel economy and vehicle greenhouse emissions but also directly challenge EPA’s leading role in regulating vehicle emissions. Will the courts, Congress, or a presidential administration sort out the traffic jam over authority to reduce vehicle greenhouse emissions? At this writing, the governors of twelve states are weighing in against what they view as a “cynical” power grab by the NHTSA, but resolution is nowhere in sight. [summary]
It’s a fine mess, the climate traffic jam. Led by California, some eighteen states have asserted a primary role in controlling vehicle greenhouse emissions. But the Environmental Protection Agency attempted to close off independent state action by denying California the Clean Air Act waiver it had to have before it (or any other state) could proceed on its own. Having blocked the states, and having lost a Supreme Court case in which it tried to avoid a role in greenhouse gas regulation, the EPA has begun to scour the Clean Air Act to establish its own primacy, not only over vehicle greenhouse emissions, but over a variety of other greenhouse gas sources as well (see accompanying blog).
The state-EPA-court dispute was bad enough, but it gets worse. The National Highway Traffic Safety Administration recently dealt a blow to both EPA and the states by proposing preemptive federal fuel economy standards (corporate average fuel economy or CAFE standards) that render the states’ efforts a clashing nullity and directly challenge EPA’s lead on vehicle emissions. Will the courts, Congress, or a presidential administration sort out the traffic jam over authority to reduce vehicle greenhouse emissions? At this writing, horns blare, voices are being raised (the governors’ above the rest), but resolution is nowhere in sight.
The dispute focuses attention on the fact that vehicle mileage standards and direct emissions controls are inextricably intertwined approaches to combating greenhouse emissions. Altering one unavoidably clashes with the other. States like California want to set both mileage requirements and emissions controls under their own laws, and the EPA wants to control (well, may be forced to control) direct vehicle emissions under the Clean Air Act, but the NHTSA says that the 2007 Energy Independence and Security Act put it in charge by empowering it to set uniform national mileage standards that must not be impaired either by inconsistent state mileage standards or by state or federal tailpipe emissions standards. That makes NHTSA the lead agency on vehicle emissions, and other climate regulatory wannabes must step aside.
The details are that NHTSA has proposed standards for 2011-2015 model years that would culminate in a 2015 standard for cars of 35.7 mpg and 28.6 mpg for light trucks, which represent substantial increases in mpg over existing CAFE standards. It is very important to understand that these proposed new standards explicitly will take carbon dioxide impacts into account for the first time. NHTSA lost a Ninth Circuit appeal when it tried to bypass consideration of CO2 impacts by arguing that it could not put a value on a ton of CO2 emissions. Although it has asked for reconsideration of this decision, it has nevertheless apparently read the handwriting on the wall and decided to issue a proposed CAFE rule that takes carbon control benefits into account.
The big news recently has been the outrage a dozen governors expressed in companion letters to the President and congressional leaders on April 23rd regarding NHTSA’s “cynical attempt” to “subvert,” “usurp,” and “assault” congressional authority and “rewrite” the Clean Air Act’s provisions covering air pollution, “including greenhouse gases.” The governors could not have been clearer (could they?) that they view state authority to control greenhouse emissions as guaranteed by the Clean Air Act and principles of federalism and that, as far as they are concerned, the only relevant federal greenhouse gas control law is the Clean Air Act (with which they are not entirely pleased, but they like it better than putting the federal Department of Transportation in control).
The NHTSA may not appear at first glance to be an environmental protection agency, but the National Environmental Policy Act (NEPA) may be the “vehicle” for an enforced education for NHTSA in climate science and policy. NHTSA’s debut in climate policy takes the form of a comprehensive NEPA environmental impact statement that the Administration has announced that it will draft on climate science and alternative ways to reduce vehicle greenhouse emissions (Federal Register Notice). The public and other agencies of federal and state government will be asked to provide comment. NHTSA wants to make its own collection of studies of greenhouse gas impacts on temperature, water, biological resources, human health and welfare, regional differences, and the time frame in which impacts may occur. If this sounds somewhat familiar, keep in mind that NHTSA comes somewhat new to the climate debate.
Thus, while EPA is asking for public comment on using the Clean Air Act’s provisions for climate management in the US, the NHTSA is creating another parallel public forum on the topic using the NEPA process and the triggering “major federal action” of its proposal of corporate average fuel economy (CAFE) standards under the 2007 Energy Independence and Security Act. While Congress continues to review climate bills and hold hearings, the federal agencies are far from silent. While this election year grinds on, maneuvering for position quietly goes forward among the states and the federal agencies most involved with climate policy development.
The US's Existing Climate Protection Laws: Will They Work?
Less than a decade has passed since the accepted wisdom was that the US would enact a greenhouse gas control regime to implement the framework climate treaty and the Kyoto Protocol, which the Senate would have ratified after much debate. Yet today it appears that our national climate strategies are going off in unanticipated directions that would have astonished the climate pundits of ten years ago.
Last December, Congress enacted a fuel, vehicle mileage, and overall energy efficiency law that will clearly help lower carbon emissions. The Senate will vote on a comprehensive climate bill in June, if the sponsors have their way, but that bill is a far cry from implementing legislation for Kyoto. The states may soon have blanketed a large part of the nation with regional and state climate initiatives that will be so pervasive that they will set the bar for the key components of over-arching federal legislation – and preserve a major role for state and local governments. There is even talk of bilateral climate agreements with India and China, and also a totally new international approach that would target greenhouse gas emissions sector-by-sector across the economies of the developed nations.
Furthermore, while all this is taking place, it appears that the Environmental Protection Agency and the environmental community have discovered – with the help of the Supreme Court – that the US has had a greenhouse gas regulation law in place for decades, well before Kyoto. By ruling a year ago that greenhouse gases are “air pollutants” under the motor vehicle emissions control provision of the Clean Air Act, the Court made the entire Act a little pregnant with the potential for federal regulation of all manner of greenhouse gas sources – the thousands of sources controlled under state implementation plans to achieve federal ambient standards, new and modified stationary sources, emitters of air toxics, sources in clear-air areas of the country, and others regulated under the Act. The particular trigger for new motor vehicle emissions regulation is a statutory determination that greenhouse emissions may reasonably be found to endanger public health or welfare, but other Clean Air Act provisions contain the same or a similar trigger for greenhouse “air pollutants” as well.
The key Clean Air Act provisions involved were rather elegantly analyzed for a House subcommittee on April 10, 2008 by the EPA’s air program administrator Robert Meyers in 19 pages of testimony, which he prefaced by saying that a full explanation “could easily fill a text book.” The relevant sections, most of which are covered in the seven petitions states and private organizations have filed, are an alphabet soup of the Clean Air Act specialists favorite programs: NAAQS, SIPs, PSD BACT, Non-attainment RACT, NSPS, HAPS MACT, aircraft, ship, and locomotive emissions provisions, and the welter of road and non-road vehicle and equipment engine and fuel emissions requirements that the Act authorizes.
To plunge into the greenhouse ramifications of any one of these programs is to plunge deep. Our Ports and Harbors Practice, for example, is considering the myriad of greenhouse gas controls that may be relevant to shippers, port authorities, transportation networks, and others on, or on the way to or from, the nation’s ports and harbors.
The EPA has tried to put off the reckoning, but the Clean Air Act has been held to be applicable to greenhouse emissions. The question is, can we live with it – can we make it work as a climate statute? States and environmental groups appear at first to be saying yes, we can, but the EPA is skeptical and has initiated a national head-scratching over the issue. The groups are pressing for a court order for EPA to come clean and issue the endangerment finding, which the groups say they have conclusive evidence that the Agency has already made. The EPA has come to the brink of making the endangerment finding more than once, only to recoil from taking the first fateful step toward conscripting the Clean Air Act into the federal climate arsenal.
Recently, the Agency has contrived to prolong its agony. It announced that it would issue an advanced notice of proposed rule making this spring inviting the public to offer its comments on climate science (endangerment) and “the broader ramifications” to “many relevant sections of the Clean Air Act” of using it as the primary policy tool for controlling greenhouse emissions. These comments would then help the Agency issue a second proposed rule that would set forth the Agency’s views on how to comply with last year’s Court decision.
The environmental plaintiffs are pressing hard for a court order requiring EPA to make the endangerment finding. They argue that the Supreme Court’s decision leaves no room for the EPA to organize a national town hall meeting on the advantages and disadvantages of using the Clean Air Act to control greenhouse gases. They reason that the Court required the agency to make an endangerment finding or give cogent scientific reasons why it could not. No other paths lie open, they say.
The Agency’s invitation for public comment seems designed to resurrect its view, rejected by the Court, that the Act would provide only an “inefficient, piecemeal approach” to controlling emissions and that a regulatory scheme that included “all significant sources and sinks” would be best. Perhaps. But an agency rule making is not the place for this legislative debate, one which Congress has already initiated and seems inclined to bring to a conclusion in a time frame that may turn out to be less protracted than EPA’s two-step rule-making process is likely to be.
In fairness to EPA, regulating greenhouse emissions through the Clean Air Act is likely to be a bit like opening Pandora’s Box to find a Trojan Horse inside. The statute may reach greenhouse “air pollutants,” but just barely, and its extensive implementing provisions were not designed with climate protection in the front of the congressional mind. The Agency appears to have concluded, we think correctly, that if it regulates motor vehicle greenhouse emissions as the states and environmental groups demand, they have to act favorably on petitions that the groups have also already filed to regulate the greenhouse emissions from a full Mother Hubbard’s cupboard of emitter bones and snacks already alluded to – airplanes, ocean vessels, off-road and recreational vehicles, sources in mining, agriculture, and construction, outdoor power equipment, and the like. This may not be the systematic, finely tuned, and comprehensive solution the nation deserves to the climate challenge, but such is the logic of the situation in which US climate policy is now mired.
It may well be that the states and environmental plaintiffs are forcing the issue on the Clean Air Act, not actually expecting or even wanting to remake it as a climate protection statute. Their purpose may be to force Congress to reach the same conclusion EPA has reached and thus pressure Congress into enacting a comprehensive climate law before the courts turn the Clean Air Act into a greenhouse gas nightmare. Chairman John Dingell appears to have fallen hard for the strategy, recently calling for federal cap-and-trade legislation to correct the “hideous mistake” the Supreme Court made. But in the meantime, the EPA is obliged to try to reconcile existing law with demands for piecemeal greenhouse regulation under the welter of Clean Air Act provisions that various groups have lined up like dominoes, ready to ask the courts to tip over.
EPA’s strategy has been dismissed by state and environmental groups as one of delay until the Administration comes to an end January 20, 2009. Listening to the skillful but beleaguered EPA Administrator at press conferences on the President’s program lends some support to this view. But Administrator Johnson does make a point that while the Clean Air Act Endangerment Stew is simmering, Congress has enacted – in important part with Administration endorsement – a law that actually may lower vehicle and other carbon emissions below the steep upward trajectory they were on only a couple of years ago. The Energy Independence and Security Act (EISA) of 2007 specifies a national mandatory fuel economy standard, a “CAFE standard,” of 35 miles per gallon by 2020, which should, the White House says, increase vehicle efficiency by 40 percent. The new law also hikes the renewable fuels mandate passed in 2005 to 36 billion gallons by the year 2022 (although plenty of pundits have begun to point out the climate and air quality downside of corn ethanol.) The new Act includes a lighting efficiency requirement for phasing out incandescent bulbs by 2014 and lighting efficiency improvements of up to 70 percent by 2020. There are also significant appliance and federal operations energy efficiency requirements in the legislation.
Based on the President’s “20 in 10” program set out in his 2007 State of the Union message (20 percent reduction in gasoline use by 2010), the Administration’s other energy savings and “green” source programs, and the EISA, the EPA has argued, somewhat logically, that all these measures are more effective than – or at the least the functional equivalent of – the command-and-control regulations that may in time be served up from the Clean Air Endangerment Stew. In fact, EPA has suggested in the past that these steps comply legally with the Supreme Court’s decision in Massachusetts v. EPA. This is what the national town hall advanced notice of proposed rule making is all about. It is also the current version of the rule making that EPA once wanted to launch, i.e., a multi-departmental rule that would involve several statutes (including the Clean Air Act) and implement the President’s 20-in-10 agenda.
More fundamentally, the Clean Air Endangerment Stew has now locked the courts, the EPA, and Congress in a struggle over how tripartite constitutional government should approach climate policy, a classic separation of powers issue that only lacks the states to make this a battle over federalism as well. As we move forward on climate in Congress, it might be wise to heed the admonition of Chancellor Bismarck. “Do not ask how legislation and sausages are made.”
Climate Adaptation
As we consider climate legislation, we do not like to be reminded that despite our best efforts, the likelihood is that national and global GHG reductions will not be enough in time to keep regional climate from changing significantly. A new two-year Resources for the Future project, “Adapting to Climate Change,” has as its purpose developing an array of on-the-ground measures to allow our institutions to mitigate the effects of climate change, when and if it occurs. [summary]
Economists sometimes bear the brunt of criticism for pointing out what the rest of us don't like to hear. They seem determined to ruin the party, by pointing out that costs accompany benefits and that there is no free ride in the economy. Theirs, it has been said, is the dismal science, and it was for good reason that Malthus said of his own work that it had a “melancholy hue.”
For over a half-century, the Washington-based economics think tank Resources for the Future has tried to overcome some of the melancholy aspects of federal policy-making by proposing realistic, more efficient solutions to the economic burdens that environmental regulation imposes. Economists at RfF helped pioneer the emissions trading schemes that are now enshrined in the Clean Air Act's sulfur and nitrogen oxide schemes that are the models for the cap-and-trade provisions included in current climate bills. Now, RfF's realistic economists are turning to another aspect of the changing climate – the likelihood that national and global greenhouse gas emissions (GHG) reductions will not be enough in time to keep regional climate from changing significantly.
A new two-year RfF project, “Adapting to Climate Change,” has as its purpose developing an array of on-the-ground measures to allow our institutions to mitigate the effects of climate change, when and if it occurs. True to the tradition of RfF to seek effective and efficient solutions, the project looks to draw upon the natural sciences and engineering communities to identify climate impacts and the strategies we can employ to mitigate the severity of those impacts.
The effort will look systematically at freshwater resources, coastal and marine ecosystems, public health, agriculture, public infrastructure and land use, and terrestrial ecosystems and biodiversity. The World Health Organization, for example, drew attention to the severe potential health impacts of climate change on the occasion of World Health Day, April 7th. With limited resources to meet the challenge, the project will try to establish principles to inform the choice among options, a means of ranking the threats and solutions, selection of the appropriate levels of governmental response, and means of financing adaptation measures that are sure to be quite expensive. The final product of the project may be a “Climate Adaptation Response Policy” that can help guide the nation's efforts when and if climate adaptation becomes a necessary part of the national response.
The project is guided by a broadly-selected interdisciplinary Steering Committee. Its members include McKenna's Fred Anderson, who has a long relationship with RfF in a number of areas.
Malthus’ view had a melancholy hue, but fortunately his speculations about human birth rates and population outrunning available resources and causing a dire overload of the earth's ability to cope were, to put it in the most generous light, premature. Perhaps predications of catastrophic climate change will also prove unfounded, either because nations manage to control GHG releases in time, or the science of climate change proves to be more forgiving than currently anticipated. But RfF deserves to be commended for taking one of the few meaningful steps to address the likelihood of significant impacts from global warming trend and to encourage clear-headed thinking about what can be done to adjust to the changes in weather pattern and severity, freshwater availability, irrigated agriculture, and the many other sectors likely to experience major change if the climate threat materializes.
