A group of leading law professors who work on climate have published a game-changing new legal analysis. It finds that the Paris climate agreement unlocks a previously unused Clean Air Act provision that enables broad authority to use market-based mechanisms to reduce carbon pollution nationwide.
Last December in Paris, the U.S. committed to cut greenhouse gas emissions 26 to 28 percent compared to 2005 levels by 2025. That target appears more than achievable given a variety of existing policies, including congressionally-approved incentives for renewable energy, national fuel economy standards, and the EPA’s Clean Power Plan, which requires states to develop plans to cut carbon pollution and existing power plants.
Some commentators in the U.S. have, however, predicted that ongoing progress in the U.S. — especially our ability to keep ratcheting down our greenhouse gas target over time — will be stymied by a lack of sufficient administrative authority combined with a Congress that refuses to take climate change seriously. Indeed, last month, the New York Times ran a story headlined, “To Achieve Paris Climate Goals, U.S. Will Need New Laws.”
That headline is wrong, according to the new legal analysis by a collection of leading legal scholars. Their analysis, “Legal Pathways to Reducing Greenhouse Gas Emissions Under Section 115 of the Clean Air Act,” finds that rather than setting an unattainable goal that needs new laws from Congress, the Paris agreement “provides a strong basis for invoking a powerful tool available” today under the federal Clean Air Act.
Specifically, the unused “International Air Pollution” provisions of the Clean Air Act, which are contained in Section 115 of the act, have been unlocked by the Paris Agreement, providing the EPA the authority to effectively and efficiently call for needed pollution reductions.
Michael Gerrard, a Professor at Columbia Law School and a lead author of the report, told Climate Progress that climate centers at Columbia, NYU and UCLA law schools had started to look at Section 115 with interest and decided a deeper dive was warranted given its promising nature.
“The deeper we dove,” said Gerrard, “the more confident we became that this provision gives the administration a solid basis for action on climate change across many sectors of the economy. We asked colleagues in several other leading law schools to review our conclusions and they concurred.”
For instance, Jonathan Z. Cannon of the University of Virginia Law School was an endorsing reviewer. Cannon was the General Counsel of the U.S. Environmental Protection Agency during the Clinton Administration and author of the historic EPA memorandum concluding that carbon dioxide was a pollutant under the Clean Air Act -– a view that was later endorsed by the Supreme Court.
“This report on Section 115 opens an important new pathway for addressing domestic greenhouse gas emissions consistent with the global nature of climate change,” as Cannon told Climate Progress. “The research is thorough and the analysis thoughtful and convincing.”
There are two prerequisites for action under section 115. First, the EPA Administrator or the Secretary of State must determine that emissions of “any air pollutant” in the United States “may reasonably be anticipated to endanger public health or welfare in a foreign country.” This element is easily satisfied given that EPA has long ago determined that greenhouse gases “threaten the public health and welfare of current and future generations.” Since then, the world’s top scientists concluded in their comprehensive November 2014 final report of the latest science, that failure to sharply reduce carbon pollution risks “severe, pervasive and irreversible impacts for people and ecosystems.” These conclusions were endorsed unanimously by every major country in the world.
Second, the EPA Administrator must find that the foreign country or countries have provided “reciprocity” to the United States by giving “the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section.” According to the new analysis, “Although there are numerous bilateral and multilateral agreements on which EPA might rely, the strongest evidence may be found in the procedural rights provided and the substantive commitments made through the United Nations Framework Convention on Climate Change (UNFCCC) and the international efforts to address climate change which recently coalesced in Paris in December 2015.”
Once the EPA determines that these prerequisites are met, the agency is directed to require the states to revise their state air pollution plans that are “inadequate to prevent or eliminate the endangerment.” According to the law professors, as a matter of both law and policy, it would be “eminently reasonable” for the EPA to use President Obama’s pledge made in anticipation of the international climate summit –- a 26 to 28 percent reduction by 2025 –- as a target under section 115.
Because the required emissions reductions are achieved through the Clean Air Act’s state planning process, they provide the maximum flexibility allowed under the Clean Air Act. Recall that in October, George W. Bush’s former EPA chief, Christine Todd Whitman, told Climate Progress that the EPA’s Clean Power Plan (CPP) is “the most flexible thing,” the agency has ever done. Agency action under section 115 would not need to affect the Clean Power Plan.
States are expressly authorized by the Clean Air Act to incorporate “economic incentives such as fees, marketable permits, and auctions of emission rights.” According to the new analysis this “provides an opportunity for avoiding potentially dozens of source-specific [greenhouse gas] regulations under other provisions of the Act, while simultaneously allowing businesses to lower their compliance costs through reliance on market-based approaches.”
The United States will meet — and most likely exceed — its 2025 climate pledge. As the reality of climate change becomes increasingly obvious — at the same time that clean energy is becoming cheaper and cheaper — the U.S. will inevitably be joining the rest of the world in ratcheting down our greenhouse gas emissions over time, as world’s nations unanimously agreed in Paris. It now appears the EPA will have the authority to take the actions needed to preserve a livable climate.
Greg Dotson is the Vice President for Energy Policy at American Progress.