U.S. Climate Policy at the Federal Level Daniel Farber Sho Sato Professor of Law, Berkeley Outline • The positions of the Bush and Obama Administrations. • Actions at the judicial level. • Actions at the administrative level. . The U.S. Policy Under the Past Two Presidents: A Changing Political Landscape The Bush Administration • Bush had promised during the 2001 campaign to regulate carbon dioxide, he repudiated this promise quickly after the election. • He also rejected the Kyoto Protocol • Basically, he only supported voluntary action by companies The Obama Administration • Proposals for climate change legislation. • Has been blocked by Republicans. • Is now pursuing EPA regulations. • But Republicans may push back. U.S. System of Government • Federal Power is divided between the President, Congress, and the Courts. Governance and Climate Policy • States can pursue their own policies. • The President has independent authority in international matters. • But domestic administration action must be based on congressional legislation. • Court interpret federal legislation, review EPA’s actions, and decide common law cases such as tort liability (delito civil). Supreme Court and Climate Change Background: The Clean Air Act • Regulates air pollution. • Applies to any substance in the area that “endangers” human health or welfare • Federal government sets permissible air levels. • Federal government also regulates new vehicles and new plants directly. • Has been successful in controlling air pollution – big reductions since 1970. Is CO2 an “Air Pollutant”? • Bush Administration said no. Why? • First, because Congress did not intend to regulate climate change in this statute. • Second, because there are better ways to address climate change. • So the Administration refused to limit CO2 from new cars and trucks. First Supreme Court Issue: Standing • A person must have “standing” to bring a case. • Three elements of standing: 1 Injury in fact (harm to the plaintiff) 2 The harm is “fairly traceable” to the defendant (causation) 3 The court can remedy the problem. The Supreme Court finds standing. • “The harms associated with climate change are serious and well recognized.” • A scientific report“identifies a number of environmental changes that have already inflicted significant harms, including ‘the global retreat of mountain glaciers [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years . . . .’ Sea Level Rise • If sea levels continue to rise as predicted, a significant fraction of coastal property will be ‘either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.’” • This harms the state’s sovereign interest in preserving its territory. The harm was significant • “Considering just emissions from the transportation sector, which represent less than one-third of this country's total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China.” The Supreme Court says CO2 is a pollutant • CO2 is covered by the plain language of the statute as a “substance found in the air.” • EPA can only consider the science – does climate change endanger human health or welfare or doesn’t it? • Other factors are legally irrelevant. Mass. v. EPA set the stage for administrative action. • The case was returned to EPA, so that EPA could make a decision about whether greenhouse gases endanger human health of welfare. • The Bush Administration delayed making any decision while it was in office. • We will consider the Obama Administration’s actions later. Other judicial action. • A lower court held that the government has to consider the effects of an action on carbon emissions in environmental impact statements. (mitigation) • Other lower courts have required that the government consider how climate change could effect its activities. (adaptation) Lawsuits Based on Torts • Several lawsuits have been filed against industry. • The suits claim that these activities are a “public nuisance” – meaning that they cause an unreasonable impact on the public. • Some suits are brought by state governments, some by private parties like victims of Hurricane Katrina. • These are common law cases. Judicial Rulings on Public Nuisances • Federal district courts have rejected the cases. They say the issues have too many repercussions to be considered by the courts. • But two federal appeals held that the courts actually can hear the cases. • The issue is currently before the Supreme Court. The Court will probably reject the cases. The Obama Administration and Climate Change Automobiles After the Supreme Court’s decision: • EPA has made a finding about “endangerment,” and issued regulations under the Clean Air Act. • In the meantime, the government has increased fuel efficiency standards for cars. Prius Hybrid LEGAL Challenges to EPA’s endangerment finding. • Is CO2 a pollutant? • Does EPA have to consider benefits of climate change as well as harms? • Does the law include risks outside of the United States? • Does EPA have to consider the economic impact of its actions? Judicial Review of Legal Issues • Under the Chevron doctrine, the court will accept EPA’s interpretation of the statute, provided that it is reasonable and not contradictory to the language of the statute. • EPA’s legal determinations in the endangerment doctrine should pass this test. SCIENTIFIC Issues • Is the evidence strong enough to conclude that the climate is changing? • Is there enough evidence that the change is caused by human activities? • Is it reasonable to conclude that U.S. emissions are a significant part of the problem? Judicial Review of Factual Issues • Under Overton Park, an agency’s factual determinations are upheld unless they are arbitrary or capricious. • This means that there must be a reasoned explanation based on the administrative record, even if the court would reach a contrary conclusion. • The endangerment finding should easily pass this test. Effect of Endangerment Finding • Will apply to factories and power plants, not just cars. • Federal government will set standards for new factories and plants based on the “best available technology.” • States will be charged with reducing greenhouse emissions. • Not an ideal system. Advantages of Using the Clean Air Act to Regulate Greenhouse Gases • Does not require new legislation. • EPA has the most expertise. • May allow the U.S. to meet its Copenhagen commitment of 17% reduction. • Would help states that are already trying to act on their own. • Republicans and some Democrats from coal states are trying hard to block this. A Complex Governance System • Except in constitutional matters, the role of the courts is secondary to Congress and the President, but they still have a great deal of influence. • If there is a basis in statute, EPA has broad authority to make rules. • But the political developments are crucial and hard to predict. The situation changes almost every week. For updates: • www.legalplanet.wordpress.com Thank you! Obrigado!